PROCEDURAL DUE PROCESS: CIVIL
Generally

Due process requires that the procedures by which laws are applied must be evenhanded, so that individuals are not subjected to the arbitrary exercise of government power.737 Exactly what procedures are needed to satisfy due process, however, will vary depending on the circumstances and subject matter involved.738 A basic threshold issue respecting whether due process is satisfied is whether the government conduct being examined is a part of a criminal or civil proceeding.739 The appropriate framework for assessing procedural rules in the field of criminal law is determining whether the procedure is offensive to the concept of fundamental fairness.740 In civil contexts, however, a balancing test is used that evaluates the government’s chosen procedure with respect to the private interest affected, the risk of erroneous deprivation of that interest under the chosen procedure, and the government interest at stake.741

Relevance of Historical Use.

The requirements of due pro-cess are determined in part by an examination of the settled usages and modes of proceedings of the common and statutory law of England during pre-colonial times and in the early years of this country.742 In other words, the antiquity of a legal procedure is a factor weighing in its favor. However, it does not follow that a procedure settled in English law and adopted in this country is, or remains, an essential element of due process of law. If that were so, the procedure of the first half of the seventeenth century would be “fastened upon American jurisprudence like a strait jacket, only to be unloosed by constitutional amendment.”743 Fortunately, the states are not tied down by any provision of the Constitution to the practice and procedure that existed at the common law, but may avail themselves of the wisdom gathered by the experience of the country to make changes deemed to be necessary.744

Non-Judicial Proceedings.

A court proceeding is not a req-uisite of due process.745 Administrative and executive proceedings are not judicial, yet they may satisfy the Due Process Clause.746 Moreover, the Due Process Clause does not require de novo judicial review of the factual conclusions of state regulatory agencies,747 and may not require judicial review at all.748 Nor does the Fourteenth Amendment prohibit a state from conferring judicial functions upon non-judicial bodies, or from delegating powers to a court that are legislative in nature.749 Further, it is up to a state to determine to what extent its legislative, executive, and judicial powers should be kept distinct and separate.750

The Requirements of Due Process.

Although due process tol-erates variances in procedure “appropriate to the nature of the case,”751 it is nonetheless possible to identify its core goals and requirements. First, “[p]rocedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.”752 Thus, the required elements of due process are those that “minimize substantively unfair or mistaken deprivations” by enabling persons to contest the basis upon which a state proposes to deprive them of protected interests.753 The core of these requirements is notice and a hearing before an impartial tribunal. Due process may also require an opportunity for confrontation and cross-examination, and for discovery; that a decision be made based on the record, and that a party be allowed to be represented by counsel.

(1) Notice. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”754 This may include an obligation, upon learning that an attempt at notice has failed, to take “reasonable followup measures” that may be available.755 In addition, notice must be sufficient to enable the recipient to determine what is being proposed and what he must do to prevent the deprivation of his interest.756 Ordinarily, service of the notice must be reasonably structured to assure that the person to whom it is directed receives it.757 Such notice, however, need not describe the legal procedures necessary to protect one’s interest if such procedures are otherwise set out in published, generally available public sources.758

(2) Hearing. “[S]ome form of hearing is required before an individual is finally deprived of a property [or liberty] interest.”759 This right is a “basic aspect of the duty of government to follow a fair process of decision making when it acts to deprive a person of his possessions. The purpose of this requirement is not only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment . . . .”760 Thus, the notice of hearing and the opportunity to be heard “must be granted at a meaningful time and in a meaningful manner.”761

(3) Impartial Tribunal. Just as in criminal and quasi-criminal cases,762 an impartial decisionmaker is an essential right in civil proceedings as well.763 “The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. . . . At the same time, it preserves both the appearance and reality of fairness . . . by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him.”764 Thus, a showing of bias or of strong implications of bias was deemed made where a state optometry board, made up of only private practitioners, was proceeding against other licensed optometrists for unprofessional conduct because they were employed by corporations. Since success in the board’s effort would redound to the personal benefit of private practitioners, the Court thought the interest of the board members to be sufficient to disqualify them.765

There is, however, a “presumption of honesty and integrity in those serving as adjudicators,”766 so that the burden is on the objecting party to show a conflict of interest or some other specific reason for disqualification of a specific officer or for disapproval of the system. Thus, combining functions within an agency, such as by allowing members of a State Medical Examining Board to both investigate and adjudicate a physician’s suspension, may raise substantial concerns, but does not by itself establish a violation of due process.767 The Court has also held that the official or personal stake that school board members had in a decision to fire teachers who had engaged in a strike against the school system in violation of state law was not such so as to disqualify them.768 Sometimes, to ensure an impartial tribunal, the Due Process Clause requires a judge to recuse himself from a case. In Caperton v. A. T. Massey Coal Co., Inc., the Court noted that “most matters relating to judicial disqualification [do] not rise to a constitutional level,” and that “matters of kinship, personal bias, state policy, [and] remoteness of interest, would seem generally to be matters merely of legislative discretion.”769 The Court added, however, that “[t]he early and leading case on the subject” had “concluded that the Due Process Clause incorporated the common-law rule that a judge must recuse himself when he has ‘a direct, personal, substantial, pecuniary interest’ in a case.”770 In addition, although “[p]ersonal bias or prejudice ‘alone would not be sufficient basis for imposing a constitutional requirement under the Due Process Clause,’ ” there “are circumstances ‘in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.’ ”771 These circumstances include “where a judge had a financial interest in the outcome of a case” or “a conflict arising from his participation in an earlier proceeding.”772 In such cases, “[t]he inquiry is an objective one. The Court asks not whether the judge is actually, subjectively biased, but whether the average judge in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’ ”773 In Caperton, a company appealed a jury verdict of $50 million, and its chairman spent $3 million to elect a justice to the Supreme Court of Appeals of West Virginia at a time when “[i]t was reasonably foreseeable . . . that the pending case would be before the newly elected justice.”774 This $3 million was more than the total amount spent by all other supporters of the justice and three times the amount spent by the justice’s own committee. The justice was elected, declined to recuse himself, and joined a 3-to-2 decision overturning the jury verdict. The Supreme Court, in a 5-to-4 opinion written by Justice Kennedy, “conclude[d] that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”775

Subsequently, in Williams v. Pennsylvania, the Court found that the right of due process was violated when a judge on the Pennsylvania Supreme Court—who participated in case denying post-conviction relief to a prisoner convicted of first-degree murder and sentenced to death—had, in his former role as a district attorney, given approval to seek the death penalty in the prisoner’s case.776 Relying on Caperton, which the Court viewed as having set forth an “objective standard” that requires recusal when the likelihood of bias on the part of the judge is “too high to be constitutionally tolerable,”777 the Williams Court specifically held that there is an impermissible risk of actual bias when a judge had previously had a “significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case.”778 The Court based its holding, in part, on earlier cases which had found impermissible bias occurs when the same person serves as both “accuser” and “adjudicator” in a case, which the Court viewed as having happened in Williams.779 It also reasoned that authorizing another person to seek the death penalty represents “significant personal involvement” in a case,780 and took the view that the involvement of multiple actors in a case over many years “only heightens”—rather than mitigates—the “need for objective rules preventing the operation of bias that otherwise might be obscured.”781 As a remedy, the case was remanded for reevaluation by the reconstituted Pennsylvania Supreme Court, notwithstanding the fact that the judge in question did not cast the deciding vote, as the Williams Court viewed the judge’s participation in the multi-member panel’s deliberations as sufficient to taint the public legitimacy of the underlying proceedings and constitute reversible error.782

(4) Confrontation and Cross-Examination. “In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.”783 Where the “evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealously,” the individual’s right to show that it is untrue depends on the rights of confrontation and cross-examination. “This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, . . . but also in all types of cases where administrative . . . actions were under scrutiny.”784

(5) Discovery. The Court has never directly confronted this issue, but in one case it did observe in dictum that “where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue.”785 Some federal agencies have adopted discovery rules modeled on the Federal Rules of Civil Procedure, and the Administrative Conference has recommended that all do so.786 There appear to be no cases, however, holding they must, and there is some authority that they cannot absent congressional authorization.787

(6) Decision on the Record. Although this issue arises principally in the administrative law area,788 it applies generally. “[T]he decisionmaker’s conclusion . . . must rest solely on the legal rules and evidence adduced at the hearing. To demonstrate compliance with this elementary requirement, the decisionmaker should state the reasons for his determination and indicate the evidence he relied on, though his statement need not amount to a full opinion or even formal findings of fact and conclusions of law.”789

(7) Counsel. In Goldberg v. Kelly, the Court held that a government agency must permit a welfare recipient who has been denied benefits to be represented by and assisted by counsel.790 In the years since, the Court has struggled with whether civil litigants in court and persons before agencies who could not afford retained counsel should have counsel appointed and paid for, and the matter seems far from settled. The Court has established a presumption that an indigent does not have the right to appointed counsel unless his “physical liberty” is threatened.791 Moreover, that an indigent may have a right to appointed counsel in some civil proceedings where incarceration is threatened does not mean that counsel must be made available in all such cases. Rather, the Court focuses on the circumstances in individual cases, and may hold that provision of counsel is not required if the state provides appropriate alternative safeguards.792

Though the calculus may vary, cases not involving detention also are determined on a case-by-case basis using a balancing standard.793

For instance, in a case involving a state proceeding to terminate the parental rights of an indigent without providing her counsel, the Court recognized the parent’s interest as “an extremely important one.” The Court, however, also noted the state’s strong interest in protecting the welfare of children. Thus, as the interest in correct fact-finding was strong on both sides, the proceeding was relatively simple, no features were present raising a risk of criminal liability, no expert witnesses were present, and no “specially troublesome” substantive or procedural issues had been raised, the litigant did not have a right to appointed counsel.794 In other due process cases involving parental rights, the Court has held that due process requires special state attention to parental rights.795 Thus, it would appear likely that in other parental right cases, a right to appointed counsel could be established.

The Procedure That Is Due Process
The Interests Protected: “Life, Liberty and Property”.

The language of the Fourteenth Amendment requires the provision of due process when an interest in one’s “life, liberty or property” is threatened.796 Traditionally, the Court made this determination by reference to the common understanding of these terms, as embodied in the development of the common law.797 In the 1960s, however, the Court began a rapid expansion of the “liberty” and “property” aspects of the clause to include such non-traditional concepts as conditional property rights and statutory entitlements. Since then, the Court has followed an inconsistent path of expanding and contracting the breadth of these protected interests. The “life” interest, on the other hand, although often important in criminal cases, has found little application in the civil context.

The Property Interest.

The expansion of the concept of “prop-erty rights” beyond its common law roots reflected a recognition by the Court that certain interests that fall short of traditional property rights are nonetheless important parts of people’s economic well-being. For instance, where household goods were sold under an installment contract and title was retained by the seller, the possessory interest of the buyer was deemed sufficiently important to require procedural due process before repossession could occur.798 In addition, the loss of the use of garnished wages between the time of garnishment and final resolution of the underlying suit was deemed a sufficient property interest to require some form of determination that the garnisher was likely to prevail.799 Furthermore, the continued possession of a driver’s license, which may be essential to one’s livelihood, is protected; thus, a license should not be suspended after an accident for failure to post a security for the amount of damages claimed by an injured party without affording the driver an opportunity to raise the issue of liability.800

A more fundamental shift in the concept of property occurred with recognition of society’s growing economic reliance on government benefits, employment, and contracts,801 and with the decline of the “right-privilege” principle. This principle, discussed previously in the First Amendment context,802 was pithily summarized by Justice Holmes in dismissing a suit by a policeman protesting being fired from his job: “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”803 Under this theory, a finding that a litigant had no “vested property interest” in government employment,804 or that some form of public assistance was “only” a privilege,805 meant that no procedural due process was required before depriving a person of that interest.806 The reasoning was that, if a government was under no obligation to provide something, it could choose to provide it subject to whatever conditions or procedures it found appropriate.

The conceptual underpinnings of this position, however, were always in conflict with a line of cases holding that the government could not require the diminution of constitutional rights as a condition for receiving benefits. This line of thought, referred to as the “unconstitutional conditions” doctrine, held that, “even though a person has no ‘right’ to a valuable government benefit and even though the government may deny him the benefit for any number of reasons, it may not do so on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech.”807 Nonetheless, the two doctrines coexisted in an unstable relationship until the 1960s, when the right-privilege distinction started to be largely disregarded.808

Concurrently with the virtual demise of the “right-privilege” distinction, there arose the “entitlement” doctrine, under which the Court erected a barrier of procedural—but not substantive—protections809 against erroneous governmental deprivation of something it had within its discretion bestowed. Previously, the Court had limited due process protections to constitutional rights, traditional rights, common law rights and “natural rights.” Now, under a new “positivist” approach, a protected property or liberty interest might be found based on any positive governmental statute or governmental practice that gave rise to a legitimate expectation. Indeed, for a time it appeared that this positivist conception of protected rights was going to displace the traditional sources.

As noted previously, the advent of this new doctrine can be seen in Goldberg v. Kelly,810 in which the Court held that, because termination of welfare assistance may deprive an eligible recipient of the means of livelihood, the government must provide a pre-termination evidentiary hearing at which an initial determination of the validity of the dispensing agency’s grounds for termination may be made. In order to reach this conclusion, the Court found that such benefits “are a matter of statutory entitlement for persons qualified to receive them.”811 Thus, where the loss or reduction of a benefit or privilege was conditioned upon specified grounds, it was found that the recipient had a property interest entitling him to proper procedure before termination or revocation.

At first, the Court’s emphasis on the importance of the statutory rights to the claimant led some lower courts to apply the Due Process Clause by assessing the weights of the interests involved and the harm done to one who lost what he was claiming. This approach, the Court held, was inappropriate. “[W]e must look not to the ‘weight’ but to the nature of the interest at stake. . . . We must look to see if the interest is within the Fourteenth Amendment’s protection of liberty and property.”812 To have a property interest in the constitutional sense, the Court held, it was not enough that one has an abstract need or desire for a benefit or a unilateral expectation. He must rather “have a legitimate claim of entitlement” to the benefit. “Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.”813

Consequently, in Board of Regents v. Roth, the Court held that the refusal to renew a teacher’s contract upon expiration of his one-year term implicated no due process values because there was nothing in the public university’s contract, regulations, or policies that “created any legitimate claim” to reemployment.814 By contrast, in Perry v. Sindermann,815 a professor employed for several years at a public college was found to have a protected interest, even though his employment contract had no tenure provision and there was no statutory assurance of it.816 The “existing rules or understandings” were deemed to have the characteristics of tenure, and thus provided a legitimate expectation independent of any contract provision.817

The Court has also found “legitimate entitlements” in a variety of other situations besides employment. In Goss v. Lopez,818 an Ohio statute provided for both free education to all residents between five and 21 years of age and compulsory school attendance; thus, the state was deemed to have obligated itself to accord students some due process hearing rights prior to suspending them, even for such a short period as ten days. “Having chosen to extend the right to an education to people of appellees’ class generally, Ohio may not withdraw that right on grounds of misconduct, absent fundamentally fair procedures to determine whether the misconduct has occurred.”819 The Court is highly deferential, however, to school dismissal decisions based on academic grounds.820

The further one gets from traditional precepts of property, the more difficult it is to establish a due process claim based on entitlements. In Town of Castle Rock v. Gonzales,821 the Court considered whether police officers violated a constitutionally protected property interest by failing to enforce a restraining order obtained by an estranged wife against her husband, despite having probable cause to believe the order had been violated. While noting statutory language that required that officers either use “every reasonable means to enforce [the] restraining order” or “seek a warrant for the arrest of the restrained person,” the Court resisted equating this language with the creation of an enforceable right, noting a long-standing tradition of police discretion coexisting with apparently mandatory arrest statutes.822 Finally, the Court even questioned whether finding that the statute contained mandatory language would have created a property right, as the wife, with no criminal enforcement authority herself, was merely an indirect recipient of the benefits of the governmental enforcement scheme.823

In Arnett v. Kennedy,824 an incipient counter-revolution to the expansion of due process was rebuffed, at least with respect to entitlements. Three Justices sought to qualify the principle laid down in the entitlement cases and to restore in effect much of the right-privilege distinction, albeit in a new formulation. The case involved a federal law that provided that employees could not be discharged except for cause, and the Justices acknowledged that due process rights could be created through statutory grants of entitlements. The Justices, however, observed that the same law specifically withheld the procedural protections now being sought by the employees. Because “the property interest which appellee had in his employment was itself conditioned by the procedural limitations which had accompanied the grant of that interest,”825 the employee would have to “take the bitter with the sweet.”826 Thus, Congress (and by analogy state legislatures) could qualify the conferral of an interest by limiting the process that might otherwise be required.

But the other six Justices, although disagreeing among themselves in other respects, rejected this attempt to formulate the issue. “This view misconceives the origin of the right to procedural due process,” Justice Powell wrote. “That right is conferred not by legislative grace, but by constitutional guarantee. While the legislature may elect not to confer a property interest in federal employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.”827 Yet, in Bishop v. Wood,828 the Court accepted a district court’s finding that a policeman held his position “at will” despite language setting forth conditions for discharge. Although the majority opinion was couched in terms of statutory construction, the majority appeared to come close to adopting the three-Justice Arnett position, so much so that the dissenters accused the majority of having repudiated the majority position of the six Justices in Arnett. And, in Goss v. Lopez,829 Justice Powell, writing in dissent but using language quite similar to that of Justice Rehnquist in Arnett, seemed to indicate that the right to public education could be qualified by a statute authorizing a school principal to impose a ten-day suspension.830

Subsequently, however, the Court held squarely that, because “minimum [procedural] requirements [are] a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse action.” Indeed, any other conclusion would allow the state to destroy virtually any state-created property interest at will.831 A striking application of this analysis is found in Logan v. Zimmerman Brush Co.,832 in which a state anti-discrimination law required the enforcing agency to convene a fact-finding conference within 120 days of the filing of the complaint. Inadvertently, the Commission scheduled the hearing after the expiration of the 120 days and the state courts held the requirement to be jurisdictional, necessitating dismissal of the complaint. The Court noted that various older cases had clearly established that causes of action were property, and, in any event, Logan’s claim was an entitlement grounded in state law and thus could only be removed “for cause.” This property interest existed independently of the 120-day time period and could not simply be taken away by agency action or inaction.833

The Liberty Interest.

With respect to liberty interests, the Court has followed a similarly meandering path. Although the traditional concept of liberty was freedom from physical restraint, the Court has expanded the concept to include various other protected interests, some statutorily created and some not.834 Thus, in Ingraham v. Wright,835 the Court unanimously agreed that school children had a liberty interest in freedom from wrongfully or excessively administered corporal punishment, whether or not such interest was protected by statute. “The liberty preserved from deprivation without due process included the right ‘generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.’ . . . Among the historic liberties so protected was a right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security.”836

The Court also appeared to have expanded the notion of “liberty” to include the right to be free of official stigmatization, and found that such threatened stigmatization could in and of itself require due process.837 Thus, in Wisconsin v. Constantineau,838 the Court invalidated a statutory scheme in which persons could be labeled “excessive drinkers,” without any opportunity for a hearing and rebuttal, and could then be barred from places where alcohol was served. The Court, without discussing the source of the entitlement, noted that the governmental action impugned the individual’s reputation, honor, and integrity.839

But, in Paul v. Davis,840 the Court appeared to retreat from recognizing damage to reputation alone, holding instead that the liberty interest extended only to those situations where loss of one’s reputation also resulted in loss of a statutory entitlement. In Davis, the police had included plaintiff ’s photograph and name on a list of “active shoplifters” circulated to merchants without an opportunity for notice or hearing. But the Court held that “Kentucky law does not extend to respondent any legal guarantee of present enjoyment of reputation which has been altered as a result of petitioners’ actions. Rather, his interest in reputation is simply one of a number which the State may protect against injury by virtue of its tort law, providing a forum for vindication of those interest by means of damage actions.”841 Thus, unless the government’s official defamation has a specific negative effect on an entitlement, such as the denial to “excessive drinkers” of the right to obtain alcohol that occurred in Constantineau, there is no protected liberty interest that would require due process.

A number of liberty interest cases that involve statutorily created entitlements involve prisoner rights, and are dealt with more extensively in the section on criminal due process. However, they are worth noting here. In Meachum v. Fano,842 the Court held that a state prisoner was not entitled to a fact-finding hearing when he was transferred to a different prison in which the conditions were substantially less favorable to him, because (1) the Due Process Clause liberty interest by itself was satisfied by the initial valid conviction, which had deprived him of liberty, and (2) no state law guaranteed him the right to remain in the prison to which he was initially assigned, subject to transfer for cause of some sort. As a prisoner could be transferred for any reason or for no reason under state law, the decision of prison officials was not dependent upon any state of facts, and no hearing was required.

In Vitek v. Jones,843 by contrast, a state statute permitted transfer of a prisoner to a state mental hospital for treatment, but the transfer could be effectuated only upon a finding, by a designated physician or psychologist, that the prisoner “suffers from a mental disease or defect” and “cannot be given treatment in that facility.” Because the transfer was conditioned upon a “cause,” the establishment of the facts necessary to show the cause had to be done through fair procedures. Interestingly, however, the Vitek Court also held that the prisoner had a “residuum of liberty” in being free from the different confinement and from the stigma of involuntary commitment for mental disease that the Due Process Clause protected. Thus, the Court has recognized, in this case and in the cases involving revocation of parole or probation,844 a liberty interest that is separate from a statutory entitlement and that can be taken away only through proper procedures.

But, with respect to the possibility of parole or commutation or otherwise more rapid release, no matter how much the expectancy matters to a prisoner, in the absence of some form of positive entitlement, the prisoner may be turned down without observance of procedures.845 Summarizing its prior holdings, the Court recently concluded that two requirements must be present before a liberty interest is created in the prison context: the statute or regulation must contain “substantive predicates” limiting the exercise of discretion, and there must be explicit “mandatory language” requiring a particular outcome if substantive predicates are found.846 In an even more recent case, the Court limited the application of this test to those circumstances where the restraint on freedom imposed by the state creates an “atypical and significant hardship.”847

Proceedings in Which Procedural Due Process Need Not Be Observed.

Although due notice and a reasonable opportunity to be heard are two fundamental protections found in almost all systems of law established by civilized countries,848 there are certain proceedings in which the enjoyment of these two conditions has not been deemed to be constitutionally necessary. For instance, persons adversely affected by a law cannot challenge its validity on the ground that the legislative body that enacted it gave no notice of proposed legislation, held no hearings at which the person could have presented his arguments, and gave no consideration to particular points of view. “Where a rule of conduct applies to more than a few people it is impracticable that everyone should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule.”849

Similarly, when an administrative agency engages in a legislative function, as, for example, when it drafts regulations of general application affecting an unknown number of persons, it need not afford a hearing prior to promulgation.850 On the other hand, if a regulation, sometimes denominated an “order,” is of limited application, that is, it affects an identifiable class of persons, the question whether notice and hearing is required and, if so, whether it must precede such action, becomes a matter of greater urgency and must be determined by evaluating the various factors discussed below.851

One such factor is whether agency action is subject to later judicial scrutiny.852 In one of the initial decisions construing the Due Process Clause of the Fifth Amendment, the Court upheld the authority of the Secretary of the Treasury, acting pursuant to statute, to obtain money from a collector of customs alleged to be in arrears. The Treasury simply issued a distress warrant and seized the collector’s property, affording him no opportunity for a hearing, and requiring him to sue for recovery of his property. While acknowledging that history and settled practice required proceedings in which pleas, answers, and trials were requisite before property could be taken, the Court observed that the distress collection of debts due the crown had been the exception to the rule in England and was of long usage in the United States, and was thus sustainable.853

In more modern times, the Court upheld a procedure under which a state banking superintendent, after having taken over a closed bank and issuing notices to stockholders of their assessment, could issue execution for the amounts due, subject to the right of each stockholder to contest his liability for such an assessment by an affidavit of illegality. The fact that the execution was issued in the first instance by a governmental officer and not from a court, followed by personal notice and a right to take the case into court, was seen as unobjectionable.854

It is a violation of due process for a state to enforce a judgment against a party to a proceeding without having given him an opportunity to be heard sometime before final judgment is entered.855 With regard to the presentation of every available defense, however, the requirements of due process do not necessarily entail affording an opportunity to do so before entry of judgment. The person may be remitted to other actions initiated by him856 or an appeal may suffice. Accordingly, a surety company, objecting to the entry of a judgment against it on a supersedeas bond, without notice and an opportunity to be heard on the issue of liability, was not denied due process where the state practice provided the opportunity for such a hearing by an appeal from the judgment so entered. Nor could the company found its claim of denial of due process upon the fact that it lost this opportunity for a hearing by inadvertently pursuing the wrong procedure in the state courts.857 On the other hand, where a state appellate court reversed a trial court and entered a final judgment for the defendant, a plaintiff who had never had an opportunity to introduce evidence in rebuttal to certain testimony which the trial court deemed immaterial but which the appellate court considered material was held to have been deprived of his rights without due process of law.858

What Process Is Due.

The requirements of due process, as has been noted, depend upon the nature of the interest at stake, while the form of due process required is determined by the weight of that interest balanced against the opposing interests.859 The currently prevailing standard is that formulated in Mathews v. Eldridge,860 which concerned termination of Social Security benefits. “Identification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional or substitute procedural safeguards; and, finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.”

The termination of welfare benefits in Goldberg v. Kelly,861 which could have resulted in a “devastating” loss of food and shelter, had required a pre-deprivation hearing. The termination of Social Security benefits at issue in Mathews would require less protection, however, because those benefits are not based on financial need and a terminated recipient would be able to apply for welfare if need be. Moreover, the determination of ineligibility for Social Security benefits more often turns upon routine and uncomplicated evaluations of data, reducing the likelihood of error, a likelihood found significant in Goldberg. Finally, the administrative burden and other societal costs involved in giving Social Security recipients a pre-termination hearing would be high. Therefore, a post-termination hearing, with full retroactive restoration of benefits, if the claimant prevails, was found satisfactory.862

Application of the Mathews standard and other considerations brought some noteworthy changes to the process accorded debtors and installment buyers. Earlier cases, which had focused upon the interests of the holders of the property in not being unjustly deprived of the goods and funds in their possession, leaned toward requiring pre-deprivation hearings. Newer cases, however, look to the interests of creditors as well. “The reality is that both seller and buyer had current, real interests in the property, and the definition of property rights is a matter of state law. Resolution of the due process question must take account not only of the interests of the buyer of the property but those of the seller as well.”863

Thus, Sniadach v. Family Finance Corp.,864 which mandated pre-deprivation hearings before wages may be garnished, has apparently been limited to instances when wages, and perhaps certain other basic necessities, are in issue and the consequences of deprivation would be severe.865 Fuentes v. Shevin,866 which struck down a replevin statute that authorized the seizure of property (here household goods purchased on an installment contract) simply upon the filing of an ex parte application and the posting of bond, has been limited,867 so that an appropriately structured ex parte judicial determination before seizure is sufficient to satisfy due process.868 Thus, laws authorizing sequestration, garnishment, or other seizure of property of an alleged defaulting debtor need only require that (1) the creditor furnish adequate security to protect the debtor’s interest, (2) the creditor make a specific factual showing before a neutral officer or magistrate, not a clerk or other such functionary, of probable cause to believe that he is entitled to the relief requested, and (3) an opportunity be assured for an adversary hearing promptly after seizure to determine the merits of the controversy, with the burden of proof on the creditor.869

Similarly, applying the Mathews v. Eldridge standard in the context of government employment, the Court has held, albeit by a combination of divergent opinions, that the interest of the employee in retaining his job, the governmental interest in the expeditious removal of unsatisfactory employees, the avoidance of administrative burdens, and the risk of an erroneous termination combine to require the provision of some minimum pre-termination notice and opportunity to respond, followed by a full post-termination hearing, complete with all the procedures normally accorded and back pay if the employee is successful.870 Where the adverse action is less than termination of employment, the governmental interest is significant, and where reasonable grounds for such action have been established separately, then a prompt hearing held after the adverse action may be sufficient.871 In other cases, hearings with even minimum procedures may be dispensed with when what is to be established is so pro forma or routine that the likelihood of error is very small.872 In a case dealing with negligent state failure to observe a procedural deadline, the Court held that the claimant was entitled to a hearing with the agency to pass upon the merits of his claim prior to dismissal of his action.873

In Brock v. Roadway Express, Inc.,874 a Court plurality applied a similar analysis to governmental regulation of private employment, determining that an employer may be ordered by an agency to reinstate a “whistle-blower” employee without an opportunity for a full evidentiary hearing, but that the employer is entitled to be informed of the substance of the employee’s charges, and to have an opportunity for informal rebuttal. The principal difference with the Mathews v. Eldridge test was that here the Court acknowledged two conflicting private interests to weigh in the equation: that of the employer “in controlling the makeup of its workforce” and that of the employee in not being discharged for whistleblowing. Whether the case signals a shift away from evidentiary hearing requirements in the context of regulatory adjudication will depend on future developments.875

A delay in retrieving money paid to the government is unlikely to rise to the level of a violation of due process. In City of Los Angeles v. David,876 a citizen paid a $134.50 impoundment fee to retrieve an automobile that had been towed by the city. When he subsequently sought to challenge the imposition of this impoundment fee, he was unable to obtain a hearing until 27 days after his car had been towed. The Court held that the delay was reasonable, as the private interest affected—the temporary loss of the use of the money—could be compensated by the addition of an interest payment to any refund of the fee. Further factors considered were that a 30-day delay was unlikely to create a risk of significant factual errors, and that shortening the delay significantly would be administratively burdensome for the city.

In another context, the Supreme Court applied the Mathews test to strike down a provision in Colorado’s Exoneration Act.877 That statute required individuals whose criminal convictions had been invalidated to prove their innocence by clear and convincing evidence in order to recoup any fines, penalties, court costs, or restitution paid to the state as a result of the conviction.878 The Court, noting that “[a]bsent conviction of crime, one is presumed innocent,”879 concluded that all three considerations under Mathews “weigh[ed] decisively against Colorado’s scheme.”880 Specifically, the Court reasoned that (1) those affected by the Colorado statute have an “obvious interest” in regaining their funds;881 (2) the burden of proving one’s innocence by “clear and convincing” evidence unacceptably risked erroneous deprivation of those funds;882 and (3) the state had “no countervailing interests” in withholding money to which it had “zero claim of right.”883 As a result, the Court held that the state could not impose “anything more than minimal procedures” for the return of funds that occurred as a result of a conviction that was subsequently invalidated.884

In another respect, the balancing standard of Mathews has resulted in states’ having wider flexibility in determining what process is required. For instance, in an alteration of previously existing law, no hearing is required if a state affords the claimant an adequate alternative remedy, such as a judicial action for damages or breach of contract.885 Thus, the Court, in passing on the infliction of corporal punishment in the public schools, held that the existence of common-law tort remedies for wrongful or excessive administration of punishment, plus the context in which the punishment was administered (i.e., the ability of the teacher to observe directly the infraction in question, the openness of the school environment, the visibility of the confrontation to other students and faculty, and the likelihood of parental reaction to unreasonableness in punishment), made reasonably assured the probability that a child would not be punished without cause or excessively.886 The Court did not, however, inquire about the availability of judicial remedies for such violations in the state in which the case arose.887

The Court has required greater protection from property deprivations resulting from operation of established state procedures than from those resulting from random and unauthorized acts of state employees,888 and presumably this distinction still holds. Thus, the Court has held that post-deprivation procedures would not satisfy due process if it is “the state system itself that destroys a complainant’s property interest.”889 Although the Court briefly entertained the theory that a negligent (i.e., non-willful) action by a state official was sufficient to invoke due process, and that a post-deprivation hearing regarding such loss was required,890 the Court subsequently overruled this holding, stating that “the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.”891

In “rare and extraordinary situations,” where summary action is necessary to prevent imminent harm to the public, and the private interest infringed is reasonably deemed to be of less importance, government can take action with no notice and no opportunity to defend, subject to a later full hearing.892 Examples are seizure of contaminated foods or drugs or other such commodities to protect the consumer,893 collection of governmental revenues,894 and the seizure of enemy property in wartime.895 Thus, citing national security interests, the Court upheld an order, issued without notice and an opportunity to be heard, excluding a short-order cook employed by a concessionaire from a Naval Gun Factory, but the basis of the five-to-four decision is unclear.896 On the one hand, the Court was ambivalent about a right-privilege distinction;897 on the other hand, it contrasted the limited interest of the cook—barred from the base, she was still free to work at a number of the concessionaire’s other premises—with the government’s interest in conducting a high-security program.898

Jurisdiction
Generally.

Jurisdiction may be defined as the power of a gov-ernment to create legal interests, and the Court has long held that the Due Process Clause limits the abilities of states to exercise this power.899 In the famous case of Pennoyer v. Neff,900 the Court enunciated two principles of jurisdiction respecting the states in a federal system901 : first, “every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory,” and second, “no State can exercise direct jurisdiction and authority over persons or property without its territory.”902 Over a long period of time, however, the mobility of American society and the increasing complexity of commerce led to attenuation of the second principle of Pennoyer, and consequently the Court established the modern standard of obtaining jurisdiction based upon the nature and the quality of contacts that individuals and corporations have with a state.903 This “minimum contacts” test, consequently, permits state courts to obtain power over out-of-state defendants.

In Personam Proceedings Against Individuals.

How juris-diction is determined depends on the nature of the suit being brought. If a dispute is directed against a person, not property, the proceedings are considered in personam, and jurisdiction must be established over the defendant’s person in order to render an effective decree.904 Generally, presence within the state is sufficient to create personal jurisdiction over an individual, if process is served.905 In the case of a resident who is absent from the state, domicile alone is deemed to be sufficient to keep him within reach of the state courts for purposes of a personal judgment, and process can be obtained by means of appropriate, substituted service or by actual personal service on the resident outside the state.906 However, if the defendant, although technically domiciled there, has left the state with no intention to return, service by publication, as compared to a summons left at his last and usual place of abode where his family continued to reside, is inadequate, because it is not reasonably calculated to give actual notice of the proceedings and opportunity to be heard.907

With respect to a nonresident, it is clearly established that no person can be deprived of property rights by a decree in a case in which he neither appeared nor was served or effectively made a party.908 The early cases held that the process of a court of one state could not run into another and summon a resident of that state to respond to proceedings against him, when neither his person nor his property was within the jurisdiction of the court rendering the judgment.909 This rule, however, has been attenuated in a series of steps.

Consent has always been sufficient to create jurisdiction, even in the absence of any other connection between the litigation and the forum. For example, the appearance of the defendant for any purpose other than to challenge the jurisdiction of the court was deemed a voluntary submission to the court’s power,910 and even a special appearance to deny jurisdiction might be treated as consensual submission to the court.911 The concept of “constructive consent” was then seized upon as a basis for obtaining jurisdiction. For instance, with the advent of the automobile, States were permitted to engage in the fiction that the use of their highways was conditioned upon the consent of drivers to be sued in state courts for accidents or other transactions arising out of such use. Thus, a state could designate a state official as a proper person to receive service of process in such litigation, and establishing jurisdiction required only that the official receiving notice communicate it to the person sued.912

Although the Court approved of the legal fiction that such jurisdiction arose out of consent, the basis for jurisdiction was really the state’s power to regulate acts done in the state that were dangerous to life or property.913 Because the state did not really have the ability to prevent nonresidents from doing business in their state,914 this extension was necessary in order to permit states to assume jurisdiction over individuals “doing business” within the state. Thus, the Court soon recognized that “doing business” within a state was itself a sufficient basis for jurisdiction over a nonresident individual, at least where the business done was exceptional enough to create a strong state interest in regulation, and service could be effectuated within the state on an agent appointed to carry out the business.915

The culmination of this trend, established in International Shoe Co. v. Washington,916 was the requirement that there be “minimum contacts” with the state in question in order to establish jurisdiction. The outer limit of this test is illustrated by Kulko v. Superior Court,917 in which the Court held that California could not obtain personal jurisdiction over a New York resident whose sole relevant contact with the state was to send his daughter to live with her mother in California.918 The argument was made that the father had “caused an effect” in the state by availing himself of the benefits and protections of California’s laws and by deriving an economic benefit in the lessened expense of maintaining the daughter in New York. The Court explained that, “[l]ike any standard that requires a determination of ‘reasonableness,’ the ‘minimum contacts’ test . . . is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite ‘affiliating circumstances’ are present.”919 Although the Court noted that the “effects” test had been accepted as a test of contacts when wrongful activity outside a state causes injury within the state or when commercial activity affects state residents, the Court found that these factors were not present in this case, and any economic benefit to Kulko was derived in New York and not in California.920 As with many such cases, the decision was narrowly limited to its facts and does little to clarify the standards applicable to state jurisdiction over nonresidents.

Walden v. Fiore further articulated what “minimum contacts” are necessary to create jurisdiction as a result of the relationship between the defendant, the forum, and the litigation.921 In Walden, the plaintiffs, who were residents of Nevada, sued a law enforcement officer in federal court in Nevada as a result of an incident that occurred in an airport in Atlanta as the plaintiffs were attempting to board a connecting flight from Puerto Rico to Las Vegas. The Court held that the court in Nevada lacked jurisdiction because of insufficient contacts between the officer and the state relative to the alleged harm, as no part of the officer’s conduct occurred in Nevada. In so holding, the Court emphasized that the minimum contacts inquiry should not focus on the resulting injury to the plaintiffs; instead, the proper question is whether the defendant’s conduct connects him to the forum in a meaningful way.922

Suing Out-of-State (Foreign) Corporations.

A curious as-pect of American law is that a corporation has no legal existence outside the boundaries of the state chartering it.923 Thus, the basis for state court jurisdiction over an out-of-state (“foreign”) corporation has been even more uncertain than that with respect to individuals. Before International Shoe Co. v. Washington,924 it was asserted that, because a corporation could not carry on business in a state without the state’s permission, the state could condition its permission upon the corporation’s consent to submit to the jurisdiction of the state’s courts, either by appointment of someone to receive process or in the absence of such designation, by accepting service upon corporate agents authorized to operate within the state.925 Further, by doing business in a state, the corporation was deemed to be present there and thus subject to service of process and suit.926 This theoretical corporate presence conflicted with the idea of corporations having no existence outside their state of incorporation, but it was nonetheless accepted that a corporation “doing business” in a state to a sufficient degree was “present” for service of process upon its agents in the state who carried out that business.927

Presence alone, however, does not expose a corporation to all manner of suits through the exercise of general jurisdiction. Only corporations, whose “continuous and systematic” affiliations with a forum make them “essentially at home” there, are broadly amenable to suit.928 While the paradigmatic examples of where a corporate defendant is “at home” are the corporation’s place of incorporation and principal place of business,929 the Court has recognized that in “exceptional cases” general jurisdiction can be exercised by a court located where the corporate defendant’s operations are “so substantial” as to “render the corporation at home in that state.”930 Nonetheless, insubstantial in-state business, in and of itself, does not suffice to permit an assertion of jurisdiction over claims that are unrelated to any activity occurring in a state.931 Without the protection of such a rule, foreign corporations would be exposed to the manifest hardship and inconvenience of defending, in any state in which they happened to be carrying on business, suits for torts wherever committed and claims on contracts wherever made.932 And if the corporation stopped doing business in the forum state before suit against it was commenced, it might well escape jurisdiction altogether.933 In early cases, the issue of the degree of activity and, in particular, the degree of solicitation that was necessary to constitute doing business by a foreign corporation, was much disputed and led to very particularistic holdings.934 In the absence of enough activity to constitute doing business, the mere presence of an agent, officer, or stockholder, who could be served, within a state’s territorial limits was not sufficient to enable the state to exercise jurisdiction over the foreign corporation.935

The touchstone in jurisdiction cases was recast by International Shoe Co. v. Washington and its “minimum contacts” analysis.936 International Shoe, an out-of-state corporation, had not been issued a license to do business in the State of Washington, but it systematically and continuously employed a sales force of Washington residents to solicit therein and thus was held amenable to suit in Washington for unpaid unemployment compensation contributions for such salesmen. The Court deemed a notice of assessment served personally upon one of the local sales solicitors, and a copy of the assessment sent by registered mail to the corporation’s principal office in Missouri, sufficient to apprise the corporation of the proceeding.

To reach this conclusion, the Court not only overturned prior holdings that mere solicitation of business does not constitute a sufficient contact to subject a foreign corporation to a state’s jurisdiction,937 but also rejected the “presence” test as begging the question to be decided. “The terms ‘present’ or ‘presence,’ ” according to Chief Justice Stone, “are used merely to symbolize those activities of the corporation’s agent within the State which courts will deem to be sufficient to satisfy the demands of due process. . . . Those demands may be met by such contacts of the corporation with the State of the forum as make it reasonable, in the context of our federal system . . . , to require the corporation to defend the particular suit which is brought there; [and] . . . that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice’. . . . An ‘estimate of the inconveniences’ which would result to the corporation from a trial away from its ‘home’ or principal place of business is relevant in this connection.”938 As to the scope of application to be accorded this “fair play and substantial justice” doctrine, the Court concluded that “so far as . . . [corporate] obligations arise out of or are connected with activities within the State, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue.”939

Extending this logic, a majority of the Court ruled that an out-of-state association selling mail order insurance had developed sufficient contacts and ties with Virginia residents so that the state could institute enforcement proceedings under its Blue Sky Law by forwarding notice to the company by registered mail, notwithstanding that the Association solicited business in Virginia solely through recommendations of existing members and was represented therein by no agents whatsoever.940 The Due Process Clause was declared not to “forbid a State to protect its citizens from such injustice” of having to file suits on their claims at a far distant home office of such company, especially in view of the fact that such suits could be more conveniently tried in Virginia where claims of loss could be investigated.941

Likewise, the Court reviewed a California statute which subjected foreign mail order insurance companies engaged in contracts with California residents to suit in California courts, and which had authorized the petitioner to serve a Texas insurer by registered mail only.942 The contract between the company and the insured specified that Austin, Texas, was the place of “making” and the place where liability should be deemed to arise. The company mailed premium notices to the insured in California, and he mailed his premium payments to the company in Texas. Acknowledging that the connection of the company with California was tenuous—it had no office or agents in the state and no evidence had been presented that it had solicited anyone other than the insured for business— the Court sustained jurisdiction on the basis that the suit was on a contract which had a substantial connection with California. “The contract was delivered in California, the premiums were mailed there and the insured was a resident of that State when he died. It cannot be denied that California has a manifest interest in providing effective means of redress for its residents when their insurers refuse to pay claims.”943

In making this decision, the Court noted that “[l]ooking back over the long history of litigation a trend is clearly discernible toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents.”944 However, in Hanson v. Denckla, decided during the same Term, the Court found in personam jurisdiction lacking for the first time since International Shoe Co. v. Washington, pronouncing firm due process limitations. In Hanson,945 the issue was whether a Florida court considering a contested will obtained jurisdiction over corporate trustees of disputed property through use of ordinary mail and publication. The will had been entered into and probated in Florida, the claimants were resident in Florida and had been personally served, but the trustees, who were indispensable parties, were resident in Delaware. Noting the trend in enlarging the ability of the states to obtain in personam jurisdiction over absent defendants, the Court denied the exercise of nationwide in personam jurisdiction by states, saying that “it would be a mistake to assume that th[e] trend [to expand the reach of state courts] heralds the eventual demise of all restrictions on the personal jurisdiction of state courts.”946

The Court recognized in Hanson that Florida law was the most appropriate law to be applied in determining the validity of the will and that the corporate defendants might be little inconvenienced by having to appear in Florida courts, but it denied that either circumstance satisfied the Due Process Clause. The Court noted that due process restrictions do more than guarantee immunity from inconvenient or distant litigation, in that “[these restrictions] are consequences of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has the ‘minimum contacts’ with that State that are a prerequisite to its exercise of power over him.” The only contacts the corporate defendants had in Florida consisted of a relationship with the individual defendants. “The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails himself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. . . . The settlor’s execution in Florida of her power of appointment cannot remedy the absence of such an act in this case.”947

The Court continued to apply International Shoe principles in diverse situations. Thus, circulation of a magazine in a state was an adequate basis for that state to exercise jurisdiction over an out-of-state corporate magazine publisher in a libel action. The fact that the plaintiff did not have “minimum contacts” with the forum state was not dispositive since the relevant inquiry is the relations among the defendant, the forum, and the litigation.948 Or, damage done to the plaintiff ’s reputation in his home state caused by circulation of a defamatory magazine article there may justify assertion of jurisdiction over the out-of-state authors of such article, despite the lack of minimum contact between the authors (as opposed to the publishers) and the state.949 Further, though there is no per se rule that a contract with an out-of-state party automatically establishes jurisdiction to enforce the contract in the other party’s forum, a franchisee who has entered into a franchise contract with an out-of-state corporation may be subject to suit in the corporation’s home state where the overall circumstances (contract terms themselves, course of dealings) demonstrate a deliberate reaching out to establish contacts with the franchisor in the franchisor’s home state.950

The Court has continued to wrestle over when a state may adjudicate a products liability claim for an injury occurring within it, at times finding the defendant’s contacts with the place of injury to be too attenuated to support its having to mount a defense there. In World-Wide Volkswagen Corp. v. Woodson,951 the Court applied its “minimum contacts” test to preclude the assertion of jurisdiction over two foreign corporations that did no business in the forum state. Plaintiffs had sustained personal injuries in Oklahoma in an accident involving an alleged defect in their automobile. The car had been purchased the previous year in New York, the plaintiffs were New York residents at time of purchase, and the accident had occurred while they were driving through Oklahoma on their way to a new residence in Arizona. Defendants were the automobile retailer and its wholesaler, both New York corporations that did no business in Oklahoma. The Court found no circumstances justifying assertion by Oklahoma courts of jurisdiction over defendants. The Court found that the defendants (1) carried on no activity in Oklahoma, (2) closed no sales and performed no services there, (3) availed themselves of none of the benefits of the state’s laws, (4) solicited no business there either through salespersons or through advertising reasonably calculated to reach the state, and (5) sold no cars to Oklahoma residents or indirectly served or sought to serve the Oklahoma market. Although it might have been foreseeable that the automobile would travel to Oklahoma, foreseeability was held to be relevant only insofar as “the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.”952 The Court in World-Wide Volkswagen Corp. contrasted the facts of the case with the instance of a corporation “deliver[ing] its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.”953

In Asahi Metal Industry Co. v. Superior Court,954 the Court addressed more closely how jurisdiction flows with products downstream. The Court identified two standards for limiting jurisdiction even as products proceed to foreseeable destinations. The more general standard harked back to the fair play and substantial justice doctrine of International Shoe and requires balancing the respective interests of the parties, the prospective forum state, and alternative fora. All the Justices agreed with the legitimacy of this test in assessing due process limits on jurisdiction.955 However, four Justices would also apply a more exacting test: A defendant who placed a product in the stream of commerce knowing that the product might eventually be sold in a state will be subject to jurisdiction there only if the defendant also had purposefully acted to avail itself of the state’s market. According to Justice O’Connor, who wrote the opinion espousing this test, a defendant subjected itself to jurisdiction by targeting or serving customers in a state through, for example, direct advertising, marketing through a local sales agent, or establishing channels for providing regular advice to local customers. Action, not expectation, is key.956 In Asahi, the state was found to lack jurisdiction under both tests cited.

Doctrinal differences on the due process touchstones in stream-of-commerce cases became more critical to the outcome in J. McIntyre Machinery, Ltd. v. Nicastro.957 Justice Kennedy, writing for a four-Justice plurality, asserted that it is a defendant’s purposeful availment of the forum state that makes jurisdiction consistent with traditional notions of fair play and substantial justice. The question is not so much the fairness of a state reaching out to bring a foreign defendant before its courts as it is a matter of a foreign defendant having acted within a state so as to bring itself within the state’s limited authority. Thus, a British machinery manufacturer who targeted the U.S. market generally through engaging a nationwide distributor and attending trade shows, among other means, could not be sued in New Jersey for an industrial accident that occurred in the state. Even though at least one of its machines (and perhaps as many as four) were sold to New Jersey concerns, the defendant had not purposefully targeted the New Jersey market through, for example, establishing an office, advertising, or sending employees.958 Concurring with the plurality, Justice Breyer emphasized the outcome lay in stream-of-commerce precedents that held isolated or infrequent sales could not support jurisdiction. At the same time, Justice Breyer cautioned against adoption of the plurality’s strict active availment of the forum rule, especially because the Court had yet to consider due process requirements in the context of evolving business models, modern e-commerce in particular.959

Nonetheless, in order for a state court to exercise specific jurisdiction, the suit must arise out of or relate to the defendant’s contacts with the forum,960 and when there is “no such connection, specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in the State.”961 As a result, the Court, in Bristol-Myers Squibb Co. v. Superior Court, concluded that the California Supreme Court erred in employing a “relaxed” approach to personal jurisdiction by holding that a state court could exercise specific jurisdiction over a corporate defendant who was being sued by non-state residents for out-of-state activities solely because the defendant had “extensive forum contacts” unrelated to the claims in question.962 Concluding that California’s approach was a “loose and spurious form of general jurisdiction,”963 the Court held that without a “connection between the forum and the specific claims at issue,” California courts lacked jurisdiction over the corporate defendant.964

Actions In Rem: Proceeding Against Property.

In an in rem action, which is an action brought directly against a property interest, a state can validly proceed to settle controversies with regard to rights or claims against tangible or intangible property within its borders, notwithstanding that jurisdiction over the defendant was never established.965 Unlike jurisdiction in personam, a judgment entered by a court with in rem jurisdiction does not bind the defendant personally but determines the title to or status of the only property in question.966 Proceedings brought to register title to land,967 to condemn968 or confiscate969 real or personal property, or to administer a decedent’s estate970 are typical in rem actions. Due process is satisfied by seizure of the property (the “res”) and notice to all who have or may have interests therein.971 Under prior case law, a court could acquire in rem jurisdiction over nonresidents by mere constructive service of process,972 under the theory that property was always in possession of its owners and that seizure would afford them notice, because they would keep themselves apprized of the state of their property. It was held, however, that this fiction did not satisfy the requirements of due process, and, whatever the nature of the proceeding, that notice must be given in a manner that actually notifies the person being sought or that has a reasonable certainty of resulting in such notice.973

Although the Court has now held “that all assertions of state-court jurisdiction must be evaluated according to the [‘minimum contacts’] standards set forth in International Shoe Co. v. Washington,”974 it does not appear that this will appreciably change the result for in rem jurisdiction over property. “[T]he presence of property in a State may bear on the existence of jurisdiction by providing contacts among the forum State, the defendant, and the litigation. For example, when claims to the property itself are the source of the underlying controversy between the plaintiff and the defendant, it would be unusual for the State where the property is located not to have jurisdiction. In such cases, the defendant’s claim to property located in the State would normally indicate that he expected to benefit from the State’s protection of his interest. The State’s strong interests in assuring the marketability of property within its borders and in providing a procedure for peaceful resolution of disputes about the possession of that property would also support jurisdiction, as would the likelihood that important records and witnesses will be found in the State.”975 Thus, for “true” in rem actions, the old results are likely to still prevail.

Quasi in Rem: Attachment Proceedings.

If a defendant is neither domiciled nor present in a state, he cannot be served personally, and any judgment in money obtained against him would be unenforceable. This does not, however, prevent attachment of a defendant’s property within the state. The practice of allowing a state to attach a non-resident’s real and personal property situated within its borders to satisfy a debt or other claim by one of its citizens goes back to colonial times. Attachment is considered a form of in rem proceeding sometimes called “quasi in rem,” and under Pennoyer v. Neff976 an attachment could be implemented by obtaining a writ against the local property of the defendant and giving notice by publication.977 The judgement was then satisfied from the property attached, and if the attached property was insufficient to satisfy the claim, the plaintiff could go no further.978

This form of proceeding raised many questions. Of course, there were always instances in which it was fair to subject a person to suit on his property located in the forum state, such as where the property was related to the matter sued over.979 In others, the question was more disputed, as in the famous New York Court of Appeals case of Seider v. Roth,980 in which the property subject to attachment was the contractual obligation of the defendant’s insurance company to defend and pay the judgment. But, in Harris v. Balk,981 the facts of the case and the establishment of jurisdiction through quasi in rem proceedings raised the issue of fairness and territoriality. The claimant was a Maryland resident who was owed a debt by Balk, a North Carolina resident. The Marylander ascertained, apparently adventitiously, that Harris, a North Carolina resident who owed Balk an amount of money, was passing through Maryland, and the Marylander attached this debt. Balk had no notice of the action and a default judgment was entered, after which Harris paid over the judgment to the Marylander. When Balk later sued Harris in North Carolina to recover on his debt, Harris argued that he had been relieved of any further obligation by satisfying the judgment in Maryland, and the Supreme Court sustained his defense, ruling that jurisdiction had been properly obtained and the Maryland judgment was thus valid.982

Subsequently, Harris v. Balk was overruled by Shaffer v. Heitner,983 in which the Court rejected the Delaware state court’s jurisdiction, holding that the “minimum contacts” test of International Shoe applied to all in rem and quasi in rem actions. The case involved a Delaware sequestration statute under which plaintiffs were authorized to bring actions against nonresident defendants by attaching their “property” within Delaware, the property here consisting of shares of corporate stock and options to stock in the defendant corporation. The stock was considered to be in Delaware because that was the state of incorporation, but none of the certificates representing the seized stocks were physically present in Delaware. The reason for applying the same test as is applied in in personam cases, the Court said, “is simple and straightforward. It is premised on recognition that ‘[t]he phrase ‘judicial jurisdiction’ over a thing,’ is a customary elliptical way of referring to jurisdiction over the interests of persons in a thing.”984 Thus, “[t]he recognition leads to the conclusion that in order to justify an exercise of jurisdiction in rem, the basis for jurisdiction must be sufficient to justify exercising ‘jurisdiction over the interests of persons in a thing.’ ”985

A further tightening of jurisdictional standards occurred in Rush v. Savchuk.986 The plaintiff was injured in a one-car accident in Indiana while a passenger in a car driven by defendant. Plaintiff later moved to Minnesota and sued defendant, still resident in Indiana, in state court in Minnesota. There were no contacts between the defendant and Minnesota, but defendant’s insurance company did business there and plaintiff garnished the insurance contract, signed in Indiana, under which the company was obligated to defend defendant in litigation and indemnify him to the extent of the policy limits. The Court refused to permit jurisdiction to be grounded on the contract; the contacts justifying jurisdiction must be those of the defendant engaging in purposeful activity related to the forum.987 Rush thus resulted in the demise of the controversial Seider v. Roth doctrine, which lower courts had struggled to save after Shaffer v. Heitner.988

Actions in Rem: Estates, Trusts, Corporations.

Generally, probate will occur where the decedent was domiciled, and, as a probate judgment is considered in rem, a determination as to assets in that state will be determinative as to all interested persons.989 Insofar as the probate affects real or personal property beyond the state’s boundaries, however, the judgment is in personam and can bind only parties thereto or their privies.990 Thus, the Full Faith and Credit Clause would not prevent an out-of-state court in the state where the property is located from reconsidering the first court’s finding of domicile, which could affect the ultimate disposition of the property.991

The difficulty of characterizing the existence of the res in a particular jurisdiction is illustrated by the in rem aspects of Hanson v. Denckla.992 As discussed earlier,993 the decedent created a trust with a Delaware corporation as trustee,994 and the Florida courts had attempted to assert both in personam and in rem jurisdiction over the Delaware corporation. Asserting the old theory that a court’s in rem jurisdiction “is limited by the extent of its power and by the coordinate authority of sister States,”995 i.e., whether the court has jurisdiction over the thing, the Court thought it clear that the trust assets that were the subject of the suit were located in Delaware and thus the Florida courts had no in rem jurisdiction. The Court did not expressly consider whether the International Shoe test should apply to such in rem jurisdiction, as it has now held it generally must, but it did briefly consider whether Florida’s interests arising from its authority to probate and construe the domiciliary’s will, under which the foreign assets might pass, were a sufficient basis of in rem jurisdiction and decided they were not.996 The effect of International Shoe in this area is still to be discerned.

The reasoning of the Pennoyer997 rule, that seizure of property and publication was sufficient to give notice to nonresidents or absent defendants, has also been applied in proceedings for the forfeiture of abandoned property. If all known claimants were personally served and all claimants who were unknown or nonresident were given constructive notice by publication, judgments in these proceedings were held binding on all.998 But, in Mullane v. Central Hanover Bank & Trust Co.,999 the Court, while declining to characterize the proceeding as in rem or in personam, held that a bank managing a common trust fund in favor of nonresident as well as resident beneficiaries could not obtain a judicial settlement of accounts if the only notice was publication in a local paper. Although such notice by publication was sufficient as to beneficiaries whose interests or addresses were unknown to the bank, the Court held that it was feasible to make serious efforts to notify residents and nonresidents whose whereabouts were known, such as by mailing notice to the addresses on record with the bank.1000

Notice: Service of Process.

Before a state may legitimately exercise control over persons and property, the state’s jurisdiction must be perfected by an appropriate service of process that is effective to notify all parties of proceedings that may affect their rights.1001 Personal service guarantees actual notice of the pendency of a legal action, and has traditionally been deemed necessary in actions styled in personam.1002 But “certain less rigorous notice procedures have enjoyed substantial acceptance throughout our legal history; in light of this history and the practical obstacles to providing personal service in every instance,” the Court in some situations has allowed the use of procedures that “do not carry with them the same certainty of actual notice that inheres in personal service.”1003 But, whether the action be in rem or in personam, there is a constitutional minimum; due process requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”1004

The use of mail to convey notice, for instance, has become quite established,1005 especially for assertion of in personam jurisdiction extraterritorially upon individuals and corporations having “minimum contacts” with a forum state, where various “long-arm” statutes authorize notice by mail.1006 Or, in a class action, due process is satisfied by mail notification of out-of-state class members, giving such members the opportunity to “opt out” but with no requirement that inclusion in the class be contingent upon affirmative response.1007 Other service devices and substitutions have been pursued and show some promise of further loosening of the concept of territoriality even while complying with minimum due process standards of notice.1008

Power of the States to Regulate Procedure
Generally.

As long as a party has been given sufficient notice and an opportunity to defend his interest, the Due Process Clause of the Fourteenth Amendment does not generally mandate the particular forms of procedure to be used in state courts.1009 The states may regulate the manner in which rights may be enforced and wrongs remedied,1010 and may create courts and endow them with such jurisdiction as, in the judgment of their legislatures, seems appropriate.1011 Whether legislative action in such matters is deemed to be wise or proves efficient, whether it works a particular hardship on a particular litigant, or perpetuates or supplants ancient forms of procedure, are issues that ordinarily do not implicate the Fourteenth Amendment. The function of the Fourteenth Amendment is negative rather than affirmative1012 and in no way obligates the states to adopt specific measures of reform.1013

Commencement of Actions.

A state may impose certain con-ditions on the right to institute litigation. Access to the courts has been denied to persons instituting stockholders’ derivative actions unless reasonable security for the costs and fees incurred by the corporation is first tendered.1014 But, foreclosure of all access to the courts, through financial barriers and perhaps through other means as well, is subject to federal constitutional scrutiny and must be justified by reference to a state interest of suitable importance. Thus, where a state has monopolized the avenues of settlement of disputes between persons by prescribing judicial resolution, and where the dispute involves a fundamental interest, such as marriage and its dissolution, the state may not deny access to those persons unable to pay its fees.1015

Older cases, which have not been questioned by more recent ones, held that a state, as the price of opening its tribunals to a nonresident plaintiff, may exact the condition that the nonresident stand ready to answer all cross actions filed and accept any in personam judgments obtained by a resident defendant through service of process or appropriate pleading upon the plaintiff ’s attorney of record.1016 For similar reasons, a requirement of the performance of a chemical analysis as a condition precedent to a suit to recover for damages resulting to crops from allegedly deficient fertilizers, while allowing other evidence, was not deemed arbitrary or unreasonable.1017

Amendment of pleadings is largely within the discretion of the trial court, and unless a gross abuse of discretion is shown, there is no ground for reversal. Accordingly, where the defense sought to be interposed is without merit, a claim that due process would be denied by rendition of a foreclosure decree without leave to file a supplementary answer is utterly without foundation.1018

Defenses.

Just as a state may condition the right to institute litigation, so may it establish terms for the interposition of certain defenses. It may validly provide that one sued in a possessory action cannot bring an action to try title until after judgment is rendered and after he has paid that judgment.1019 A state may limit the defense in an action to evict tenants for nonpayment of rent to the issue of payment and leave the tenants to other remedial actions at law on a claim that the landlord had failed to maintain the premises.1020 A state may also provide that the doctrines of contributory negligence, assumption of risk, and fellow servant do not bar recovery in certain employment-related accidents. No person has a vested right in such defenses.1021 Similarly, a nonresident defendant in a suit begun by foreign attachment, even though he has no resources or credit other than the property attached, cannot challenge the validity of a statute which requires him to give bail or security for the discharge of the seized property before permitting him an opportunity to appear and defend.1022

Costs, Damages, and Penalties.

What costs are allowed by law is for the court to determine; an erroneous judgment of what the law allows does not deprive a party of his property without due process of law.1023 Nor does a statute providing for the recovery of reasonable attorney’s fees in actions on small claims subject unsuccessful defendants to any unconstitutional deprivation.1024 Congress may, however, severely restrict attorney’s fees in an effort to keep an administrative claims proceeding informal.1025

Equally consistent with the requirements of due process is a statutory procedure whereby a prosecutor of a case is adjudged liable for costs, and committed to jail in default of payment thereof, whenever the court or jury, after according him an opportunity to present evidence of good faith, finds that he instituted the prosecution without probable cause and from malicious motives.1026 Also, as a reasonable incentive for prompt settlement without suit of just demands of a class receiving special legislative treatment, such as common carriers and insurance companies together with their patrons, a state may permit harassed litigants to recover penalties in the form of attorney’s fees or damages.1027

By virtue of its plenary power to prescribe the character of the sentence which shall be awarded against those found guilty of crime, a state may provide that a public officer embezzling public money shall, notwithstanding that he has made restitution, suffer not only imprisonment but also pay a fine equal to double the amount embezzled, which shall operate as a judgment for the use of persons whose money was embezzled. Whatever this fine is called, whether a penalty, or punishment, or civil judgment, it comes to the convict as the result of his crime.1028 On the other hand, when appellant, by its refusal to surrender certain assets, was adjudged in contempt for frustrating enforcement of a judgment obtained against it, dismissal of its appeal from the first judgment was not a penalty imposed for the contempt, but merely a reasonable method for sustaining the effectiveness of the state’s judicial process.1029

To deter careless destruction of human life, a state may allow punitive damages to be assessed in actions against employers for deaths caused by the negligence of their employees,1030 and may also allow punitive damages for fraud perpetrated by employees.1031 Also constitutional is the traditional common law approach for measuring punitive damages, granting the jury wide but not unlimited discretion to consider the gravity of the offense and the need to deter similar offenses.1032 The Court has indicated, however, that, although the Excessive Fines Clause of the Eighth Amendment “does not apply to awards of punitive damages in cases between private parties,”1033 a “grossly excessive” award of punitive damages violates substantive due process, as the Due Process Clause limits the amount of punitive damages to what is “reasonably necessary to vindicate the State’s legitimate interests in punishment and deterrence.”1034 These limits may be discerned by a court by examining the degree of reprehensibility of the act, the ratio between the punitive award and plaintiff ’s actual or potential harm, and the legislative sanctions provided for comparable misconduct.1035 In addition, the “Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties . . . .”1036

Statutes of Limitation.

A statute of limitations does not de-prive one of property without due process of law, unless, in its application to an existing right of action, it unreasonably limits the opportunity to enforce the right by suit. By the same token, a state may shorten an existing period of limitation, provided a reasonable time is allowed for bringing an action after the passage of the statute and before the bar takes effect. What is a reasonable period, however, is dependent on the nature of the right and particular circumstances.1037

Thus, where a receiver for property is appointed 13 years after the disappearance of the owner and notice is made by publication, it is not a violation of due process to bar actions relative to that property after an interval of only one year after such appointment.1038 When a state, by law, suddenly prohibits all actions to contest tax deeds which have been of record for two years unless they are brought within six months after its passage, no unconstitutional deprivation is effected.1039 No less valid is a statute which provides that when a person has been in possession of wild lands under a recorded deed continuously for 20 years and had paid taxes thereon during the same, and the former owner in that interval pays nothing, no action to recover such land shall be entertained unless commenced within 20 years, or before the expiration of five years following enactment of said provision.1040 Similarly, an amendment to a workmen’s compensation act, limiting to three years the time within which a case may be reopened for readjustment of compensation on account of aggravation of a disability, does not deny due process to one who sustained his injury at a time when the statute contained no limitation. A limitation is deemed to affect the remedy only, and the period of its operation in this instance was viewed as neither arbitrary nor oppressive.1041

Moreover, a state may extend as well as shorten the time in which suits may be brought in its courts and may even entirely remove a statutory bar to the commencement of litigation. Thus, a repeal or extension of a statute of limitations affects no unconstitutional deprivation of property of a debtor-defendant in whose favor such statute had already become a defense. “A right to defeat a just debt by the statute of limitation . . . [is not] a vested right,” such as is protected by the Constitution. Accordingly no offense against the Fourteenth Amendment is committed by revival, through an extension or repeal, of an action on an implied obligation to pay a child for the use of her property,1042 or a suit to recover the purchase price of securities sold in violation of a Blue Sky Law,1043 or a right of an employee to seek, on account of the aggravation of a former injury, an additional award out of a state-administered fund.1044

However, for suits to recover real and personal property, when the right of action has been barred by a statute of limitations and title as well as real ownership have become vested in the defendant, any later act removing or repealing the bar would be void as attempting an arbitrary transfer of title.1045 Also unconstitutional is the application of a statute of limitation to extend a period that parties to a contract have agreed should limit their right to remedies under the contract. “When the parties to a contract have expressly agreed upon a time limit on their obligation, a statute which invalidates . . . [said] agreement and directs enforcement of the contract after . . . [the agreed] time has expired” unconstitutionally imposes a burden in excess of that contracted.1046

Burden of Proof and Presumptions.

It is clearly within the domain of the legislative branch of government to establish presumptions and rules respecting burden of proof in litigation.1047 Nonetheless, the Due Process Clause does prevent the deprivation of liberty or property upon application of a standard of proof too lax to make reasonable assurance of accurate factfinding. Thus, “[t]he function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’ ”1048

Applying the formula it has worked out for determining what process is due in a particular situation,1049 the Court has held that a standard at least as stringent as clear and convincing evidence is required in a civil proceeding to commit an individual involuntarily to a state mental hospital for an indefinite period.1050 Similarly, because the interest of parents in retaining custody of their children is fundamental, the state may not terminate parental rights through reliance on a standard of preponderance of the evidence—the proof necessary to award money damages in an ordinary civil action— but must prove that the parents are unfit by clear and convincing evidence.1051 Further, unfitness of a parent may not simply be presumed because of some purported assumption about general characteristics, but must be established.1052

As long as a presumption is not unreasonable and is not conclusive, it does not violate the Due Process Clause. Legislative fiat may not take the place of fact in the determination of issues involving life, liberty, or property, however, and a statute creating a presumption which is entirely arbitrary and which operates to deny a fair opportunity to repel it or to present facts pertinent to one’s defense is void.1053 On the other hand, if there is a rational connection between what is proved and what is inferred, legislation declaring that the proof of one fact or group of facts shall constitute prima facie evidence of a main or ultimate fact will be sustained.1054

For a brief period, the Court used what it called the “irrebuttable presumption doctrine” to curb the legislative tendency to confer a benefit or to impose a detriment based on presumed characteristics based on the existence of another characteristic.1055 Thus, in Stanley v. Illinois,1056 the Court found invalid a construction of the state statute that presumed illegitimate fathers to be unfit parents and that prevented them from objecting to state wardship. Mandatory maternity leave rules requiring pregnant teachers to take unpaid maternity leave at a set time prior to the date of the expected births of their babies were voided as creating a conclusive presumption that every pregnant teacher who reaches a particular point of pregnancy becomes physically incapable of teaching.1057

Major controversy developed over the application of “irrebuttable presumption doctrine” in benefits cases. Thus, although a state may require that nonresidents must pay higher tuition charges at state colleges than residents, and while the Court assumed that a durational residency requirement would be permissible as a prerequisite to qualify for the lower tuition, it was held impermissible for the state to presume conclusively that because the legal address of a student was outside the state at the time of application or at some point during the preceding year he was a nonresident as long as he remained a student. The Due Process Clause required that the student be afforded the opportunity to show that he is or has become a bona fide resident entitled to the lower tuition.1058

Moreover, a food stamp program provision making ineligible any household that contained a member age 18 or over who was claimed as a dependent for federal income tax purposes the prior tax year by a person not himself eligible for stamps was voided on the ground that it created a conclusive presumption that fairly often could be shown to be false if evidence could be presented.1059 The rule which emerged for subjecting persons to detriment or qualifying them for benefits was that the legislature may not presume the existence of the decisive characteristic upon a given set of facts, unless it can be shown that the defined characteristics do in fact encompass all persons and only those persons that it was the purpose of the legislature to reach. The doctrine in effect afforded the Court the opportunity to choose between resort to the Equal Protection Clause or to the Due Process Clause in judging the validity of certain classifications,1060 and it precluded Congress and legislatures from making general classifications that avoided the administrative costs of individualization in many areas.

Use of the doctrine was curbed if not halted, however, in Weinberger v. Salfi,1061 in which the Court upheld the validity of a Social Security provision requiring that the spouse of a covered wage earner must have been married to the wage earner for at least nine months prior to his death in order to receive benefits as a spouse. Purporting to approve but to distinguish the prior cases in the line,1062 the Court imported traditional equal protection analysis into considerations of due process challenges to statutory classifications.1063 Extensions of the prior cases to government entitlement classifications, such as the Social Security Act qualification standard before it, would, said the Court, “turn the doctrine of those cases into a virtual engine of destruction for countless legislative judgments which have heretofore been thought wholly consistent with the Fifth and Fourteenth Amendments to the Constitution.”1064 Whether the Court will now limit the doctrine to the detriment area only, exclusive of benefit programs, whether it will limit it to those areas which involve fundamental rights or suspect classifications (in the equal protection sense of those expressions)1065 or whether it will simply permit the doctrine to pass from the scene remains unsettled, but it is noteworthy that it now rarely appears on the Court’s docket.1066

Trials and Appeals.

Trial by jury in civil trials, unlike the case in criminal trials, has not been deemed essential to due process, and the Fourteenth Amendment has not been held to restrain the states in retaining or abolishing civil juries.1067 Thus, abolition of juries in proceedings to enforce liens,1068 mandamus1069 and quo warranto1070 actions, and in eminent domain1071 and equity1072 proceedings has been approved. states are also free to adopt innovations respecting selection and number of jurors. Verdicts rendered by ten out of twelve jurors may be substituted for the requirement of unanimity,1073 and petit juries containing eight rather than the conventional number of twelve members may be established.1074

If a full and fair trial on the merits is provided, due process does not require a state to provide appellate review.1075 But if an appeal is afforded, the state must not so structure it as to arbitrarily deny to some persons the right or privilege available to others.1076

Footnotes

737
Thus, where a litigant had the benefit of a full and fair trial in the state courts, and his rights are measured, not by laws made to affect him individually, but by general provisions of law applicable to all those in like condition, he is not deprived of property without due process of law, even if he can be regarded as deprived of his property by an adverse result. Marchant v. Pennsylvania R.R., 153 U.S. 380, 386 (1894). [Back to text]
738
Hagar v. Reclamation Dist., 111 U.S. 701, 708 (1884). “Due process of law is [process which], following the forms of law, is appropriate to the case and just to the parties affected. It must be pursued in the ordinary mode prescribed by law; it must be adapted to the end to be attained; and whenever necessary to the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought. Any legal proceeding enforced by public authority, whether sanctioned by age or custom or newly devised in the discretion of the legislative power, which regards and preserves these principles of liberty and justice, must be held to be due process of law.” Id. at 708; Accord, Hurtado v. California, 110 U.S. 516, 537 (1884). [Back to text]
739
See Medina v. California 505 U.S. 437, 443 (1992). [Back to text]
740
Id. [Back to text]
741
See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). In Nelson v. Colorado, the Supreme Court held that the Mathews test controls when evaluating state procedures governing the continuing deprivation of property after a criminal conviction has been reversed or vacated, with no prospect of reprosecution. See 581 U.S. ___, No. 15–1256, slip op. at 6 (2017). [Back to text]
742
Twining v. New Jersey, 211 U.S. 78, 101 (1908); Brown v. New Jersey, 175 U.S. 172, 175 (1899). “A process of law, which is not otherwise forbidden, must be taken to be due process of law, if it can show the sanction of settled usage both in England and this country.” Hurtado v. California, 110 U.S. at 529. [Back to text]
743
Twining, 211 U.S. at 101. [Back to text]
744
Hurtado v. California, 110 U.S. 516, 529 (1884); Brown v. New Jersey, 175 U.S. 172, 175 (1899); Anderson Nat’l Bank v. Luckett, 321 U.S. 233, 244 (1944). [Back to text]
745
Ballard v. Hunter, 204 U.S. 241, 255 (1907); Palmer v. McMahon, 133 U.S. 660, 668 (1890). [Back to text]
746
For instance, proceedings to raise revenue by levying and collecting taxes are not necessarily judicial proceedings, yet their validity is not thereby impaired. McMillen v. Anderson, 95 U.S. 37, 41 (1877). [Back to text]
747
Railroad Comm’n v. Rowan & Nichols Oil Co., 311 U.S. 570 (1941) (oil field proration order). See also Railroad Comm’n v. Rowan & Nichols Oil Co., 310 U.S. 573 (1940) (courts should not second-guess regulatory commissions in evaluating expert testimony). [Back to text]
748
See, e.g., Moore v. Johnson, 582 F.2d 1228, 1232 (9th Cir. 1978) (upholding the preclusion of judicial review of decisions of the Veterans Administration regarding veterans’ benefits). [Back to text]
749
State statutes vesting in a parole board certain judicial functions, Dreyer v. Illinois, 187 U.S. 71, 83–84 (1902), or conferring discretionary power upon administrative boards to grant or withhold permission to carry on a trade, New York ex rel. Lieberman v. Van De Carr, 199 U.S. 552, 562 (1905), or vesting in a probate court authority to appoint park commissioners and establish park districts, Ohio v. Akron Park Dist., 281 U.S. 74, 79 (1930), are not in conflict with the Due Process Clause and present no federal question. [Back to text]
750
Carfer v. Caldwell, 200 U.S. 293, 297 (1906). [Back to text]
751
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). [Back to text]
752
Carey v. Piphus, 435 U.S. 247, 259 (1978). “[P]rocedural due process rules are shaped by the risk of error inherent in the truth-finding process as applied to the generality of cases.” Mathews v. Eldridge, 424 U.S. 319, 344 (1976). [Back to text]
753
Fuentes v. Shevin, 407 U.S. 67, 81 (1972). At times, the Court has also stressed the dignitary importance of procedural rights, the worth of being able to defend one’s interests even if one cannot change the result. Carey v. Piphus, 435 U.S. 247, 266–67 (1978); Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980); Nelson v. Adams, 529 U.S. 460 (2000) (amendment of judgement to impose attorney fees and costs to sole shareholder of liable corporate structure invalid without notice or opportunity to dispute). [Back to text]
754
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). See also Richards v. Jefferson County, 517 U.S. 793 (1996) (res judicata may not apply where taxpayer who challenged a county’s occupation tax was not informed of prior case and where taxpayer interests were not adequately protected). [Back to text]
755
Jones v. Flowers, 547 U.S. 220, 235 (2006) (state’s certified letter, intended to notify a property owner that his property would be sold unless he satisfied a tax delinquency, was returned by the post office marked “unclaimed”; the state should have taken additional reasonable steps to notify the property owner, as it would have been practicable for it to have done so). [Back to text]
756
Goldberg v. Kelly, 397 U.S. 254, 267–68 (1970). [Back to text]
757
Armstrong v. Manzo, 380 U.S. 545, 550 (1965); Robinson v. Hanrahan, 409 U.S. 38 (1974); Greene v. Lindsey, 456 U.S. 444 (1982). [Back to text]
758
City of West Covina v. Perkins, 525 U.S. 234 (1999). [Back to text]
759
Mathews v. Eldridge, 424 U.S. 319, 333 (1976). “Parties whose rights are to be affected are entitled to be heard.” Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233 (1863). [Back to text]
760
Fuentes v. Shevin, 407 U.S. 67, 80–81 (1972). See Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170–71 (1951) (Justice Frankfurter concurring). [Back to text]
761
Armstrong v. Manzo, 380 U.S. 545, 552 (1965). [Back to text]
762
Tumey v. Ohio, 273 U.S. 510 (1927)); In re Murchison, 349 U.S. 133 (1955). [Back to text]
763
Goldberg v. Kelly, 397 U.S. 254, 271 (1970). [Back to text]
764
Marshall v. Jerrico, 446 U.S. 238, 242 (1980); Schweiker v. McClure, 456 U.S. 188, 195 (1982). [Back to text]
765
Gibson v. Berryhill, 411 U.S. 564 (1973). Or, the conduct of deportation hearings by a person who, while he had not investigated the case heard, was also an investigator who must judge the results of others’ investigations just as one of them would some day judge his, raised a substantial problem which was resolved through statutory construction). Wong Yang Sung v. McGrath, 339 U.S. 33 (1950). [Back to text]
766
Schweiker v. McClure, 456 U.S. 188, 195 (1982); Withrow v. Larkin, 421 U.S. 35, 47 (1975); United States v. Morgan, 313 U.S. 409, 421 (1941). [Back to text]
767
Withrow v. Larkin, 421 U.S. 35 (1975). Where an administrative officer is acting in a prosecutorial, rather than judicial or quasi-judicial role, an even lesser standard of impartiality applies. Marshall v. Jerrico, 446 U.S. 238, 248–50 (1980) (regional administrator assessing fines for child labor violations, with penalties going into fund to reimburse cost of system of enforcing child labor laws). But “traditions of prosecutorial discretion do not immunize from judicial scrutiny cases in which enforcement decisions of an administrator were motivated by improper factors or were otherwise contrary to law.” Id. at 249. [Back to text]
768
Hortonville Joint School Dist. v. Hortonville Educ. Ass’n, 426 U.S. 482 (1976). Compare Arnett v. Kennedy, 416 U.S. 134, 170 n.5 (1974) (Justice Powell), with id. at 196–99 (Justice White), and 216 (Justice Marshall). [Back to text]
769
556 U.S. ___, No. 08–22, slip op. at 6 (2009) (citations omitted). [Back to text]
770
556 U.S. ___, No. 08–22, slip op. at 6, quoting Tumey v. Ohio, 273 U.S. 510, 523 (1927). [Back to text]
771
556 U.S. ___, No. 08–22, slip op. at 6 (citations omitted). [Back to text]
772
556 U.S. ___, No. 08–22, slip op. at 7, 9. [Back to text]
773
556 U.S. ___, No. 08–22, slip op. at 11 (citations omitted). [Back to text]
774
556 U.S. ___, No. 08–22, slip op. at 15. [Back to text]
775
556 U.S. ___, No. 08–22, slip op. at 14. Chief Justice Roberts, joined by Justices Scalia, Thomas, and Alito, dissented, asserting that “a ‘probability of bias’ cannot be defined in any limited way,” “provides no guidance to judges and litigants about when recusal will be constitutionally required,” and “will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be.” Slip. op. at 1 (Roberts, C.J., dissenting). The majority countered that “[t]he facts now before us are extreme in any measure.” Slip op. at 17. [Back to text]
776
579 U.S. ___, No. 15–5040, slip op. at 1 (2016). [Back to text]
777
Id. (internal quotations omitted). [Back to text]
778
Id. at 5–6. [Back to text]
779
Id. at 6 (citing In re Murchison, 349 U.S. 133, 136–37 (1955)). The Court also noted that “[n]o attorney is more integral to the accusatory process than a prosecutor who participates in a major adversary decision.” Id. at 7. [Back to text]
780
Id. at 9. See also id. at 10 (noting that the judge in this case had highlighted the number of capital cases in which he participated when campaigning for judicial office). [Back to text]
781
Id. at 8. [Back to text]
782
Id. at 12–13. Likewise, the Court rejected the argument that remanding the case would not cure the underlying due process violation because the disqualified judge’s views might still influence his former colleagues, as an “inability to guarantee complete relief for a constitutional violation . . . does not justify withholding a remedy altogether.” Id. at 14. [Back to text]
783
Goldberg v. Kelly, 397 U.S. 254, 269 (1970). See also ICC v. Louisville & Nashville R.R., 227 U.S. 88, 93–94 (1913). Cf. § 7(c) of the Administrative Procedure Act, 5 U.S.C. § 556(d). [Back to text]
784
Greene v. McElroy, 360 U.S. 474, 496–97 (1959). But see Richardson v. Perales, 402 U.S. 389 (1971) (where authors of documentary evidence are known to petitioner and he did not subpoena them, he may not complain that agency relied on that evidence). Cf. Mathews v. Eldridge, 424 U.S. 319, 343–45 (1976). [Back to text]
785
Greene v. McElroy, 360 U.S. 474, 496 (1959), quoted with approval in Goldberg v. Kelly, 397 U.S. 254, 270 (1970). [Back to text]
786
RECOMMENDATIONS AND REPORTS OF THE ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 571 (1968–1970). [Back to text]
787
FMC v. Anglo-Canadian Shipping Co., 335 F.2d 255 (9th Cir. 1964). [Back to text]
788
The exclusiveness of the record is fundamental in administrative law. See § 7(d) of the Administrative Procedure Act, 5 U.S.C. § 556(e). However, one must show not only that the agency used ex parte evidence but that he was prejudiced thereby. Market Street R.R. v. Railroad Comm’n, 324 U.S. 548 (1945) (agency decision supported by evidence in record, its decision sustained, disregarding ex parte evidence). [Back to text]
789
Goldberg v. Kelly, 397 U.S. 254, 271 (1970) (citations omitted). [Back to text]
790
397 U.S. 254, 270–71 (1970). [Back to text]
791
Lassiter v. Department of Social Services, 452 U.S. 18 (1981). The Court purported to draw this rule from Gagnon v. Scarpelli, 411 U.S. 778 (1973) (no per se right to counsel in probation revocation proceedings). To introduce this presumption into the balancing, however, appears to disregard the fact that the first factor of Mathews v. Eldridge, 424 U.S. 319 (1976), upon which the Court (and dissent) relied, relates to the importance of the interest to the person claiming the right. Thus, at least in this context, the value of the first Eldridge factor is diminished. The Court noted, however, that the Mathews v. Eldridge standards were drafted in the context of the generality of cases and were not intended for case-by-case application. Cf.424 U.S. at 344 (1976). [Back to text]
792
Turner v. Rogers, 564 U.S. ___, No. 10–10, slip op. (2011). The Turner Court denied an indigent defendant appointed counsel in a civil contempt proceeding to enforce a child support order, even though the defendant faced incarceration unless he showed an inability to pay the arrearages. The party opposing the defendant in the case was not the state, but rather the unrepresented custodial parent, nor was the case unusually complex. A five-Justice majority, though denying a right to counsel, nevertheless reversed the contempt order because it found that the procedures followed remained inadequate. [Back to text]
793
452 U.S. at 31–32. The balancing decision is to be made initially by the trial judge, subject to appellate review. Id. at 32 [Back to text]
794
452 U.S. at 27–31. The decision was a five-to-four, with Justices Stewart, White, Powell, and Rehnquist and Chief Justice Burger in the majority, and Justices Blackmun, Brennan, Marshall, and Stevens in dissent. Id. at 35, 59. [Back to text]
795
See, e.g., Little v. Streater, 452 U.S. 1 (1981) (indigent entitled to state-funded blood testing in a paternity action the state required to be instituted); Santosky v. Kramer, 455 U.S. 745 (1982) (imposition of higher standard of proof in case involving state termination of parental rights). [Back to text]
796
Morrissey v. Brewer, 408 U.S. 471, 481 (1982). “The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount. But the range of interests protected by procedural due process is not infinite.” Board of Regents v. Roth, 408 U.S. 564, 569–71 (1972). Developments under the Fifth Amendment’s Due Process Clause have been interchangeable. Cf. Arnett v. Kennedy, 416 U.S. 134 (1974). [Back to text]
797
For instance, at common law, one’s right of life existed independently of any formal guarantee of it and could be taken away only by the state pursuant to the formal processes of law, and only for offenses deemed by a legislative body to be particularly heinous. One’s liberty, generally expressed as one’s freedom from bodily restraint, was a natural right to be forfeited only pursuant to law and strict formal procedures. One’s ownership of lands, chattels, and other properties, to be sure, was highly dependent upon legal protections of rights commonly associated with that ownership, but it was a concept universally understood in Anglo-American countries. [Back to text]
798
Fuentes v. Shevin, 407 U.S. 67 (1972) (invalidating replevin statutes which authorized the authorities to seize goods simply upon the filing of an ex parte application and the posting of bond). [Back to text]
799
Sniadach v. Family Finance Corp., 395 U.S. 337, 342 (1969) (Harlan, J., concurring). [Back to text]
800
Bell v. Burson, 402 U.S. 535 (1971). Compare Dixon v. Love, 431 U.S. 105 (1977), with Mackey v. Montrym, 443 U.S. 1 (1979). But see American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999) (no liberty interest in worker’s compensation claim where reasonableness and necessity of particular treatment had not yet been resolved). [Back to text]
801
See LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 685 (2d. ed) (1988). [Back to text]
802
Tribe, supra, at 1084–90. [Back to text]
803
McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E.2d 517, 522 (1892). [Back to text]
804
Bailey v. Richardson, 182 F.2d 46 (D.C. Cir. 1950), aff’d by an equally divided Court, 314 U.S. 918 (1951); Adler v. Board of Educ., 342 U.S. 485 (1952). [Back to text]
805
Flemming v. Nestor, 363 U.S. 603 (1960). [Back to text]
806
Barsky v. Board of Regents, 347 U.S. 442 (1954). [Back to text]
807
Perry v. Sindermann, 408 U.S. 593, 597 (1972). See Speiser v. Randall, 357 U.S. 513 (1958). [Back to text]
808
See William Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 HARV. L. REV. 1439 (1968). Much of the old fight had to do with imposition of conditions on admitting corporations into a state. Cf. Western & Southern Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 656–68 (1981) (reviewing the cases). The right-privilege distinction is not, however, totally moribund. See Buckley v. Valeo, 424 U.S. 1, 108–09 (1976) (sustaining as qualification for public financing of campaign agreement to abide by expenditure limitations otherwise unconstitutional); Wyman v. James, 400 U.S. 309 (1971). [Back to text]
809
This means that Congress or a state legislature could still simply take away part or all of the benefit. Richardson v. Belcher, 404 U.S. 78 (1971); United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 174 (1980); Logan v. Zimmerman Brush Co., 455 U.S. 422, 432–33 (1982). [Back to text]
810
397 U.S. 254 (1970). [Back to text]
811
397 U.S. at 261–62. See also Mathews v. Eldridge, 424 U.S. 319 (1976) (Social Security benefits). [Back to text]
812
Board of Regents v. Roth, 408 U.S. 564, 569–71 (1972). [Back to text]
813
408 U.S. at 577. Although property interests often arise by statute, the Court has also recognized interests established by state case law. Thus, where state court holdings required that private utilities terminate service only for cause (such as non-payment of charges), then a utility is required to follow procedures to resolve disputes about payment or the accuracy of charges prior to terminating service. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978). [Back to text]
814
436 U.S. at 576–78. The Court also held that no liberty interest was implicated, because in declining to rehire Roth the state had not made any charges against him or taken any actions that would damage his reputation or stigmatize him. 436 at 572–75. For an instance of protection accorded a claimant on the basis of such an action, see Codd v. Vegler. See also Bishop v. Wood, 426 U.S. 341, 347–50 (1976); Vitek v. Jones, 445 U.S. 480, 491–94 (1980); Board of Curators v. Horowitz, 435 U.S. 78, 82–84 (1978). [Back to text]
815
408 U.S. 593 (1972). See Leis v. Flynt, 439 U.S. 438 (1979) (finding no practice or mutually explicit understanding creating interest). [Back to text]
816
408 U.S. at 601–03 (1972). In contrast, a statutory assurance was found in Arnett v. Kennedy, 416 U.S. 134 (1974), where the civil service laws and regulations allowed suspension or termination “only for such cause as would promote the efficiency of the service.” 416 U.S. at 140. On the other hand, a policeman who was a “permanent employee” under an ordinance which appeared to afford him a continuing position subject to conditions subsequent was held not to be protected by the Due Process Clause because the federal district court interpreted the ordinance as providing only employment at the will and pleasure of the city, an interpretation that the Supreme Court chose not to disturb. Bishop v. Wood, 426 U.S. 341 (1976). “On its face,” the Court noted, “the ordinance on which [claimant relied] may fairly be read as conferring” both “a property interest in employment . . . [and] an enforceable expectation of continued public employment.” 426 U.S. at 344–45 (1976). The district court’s decision had been affirmed by an equally divided appeals court and the Supreme Court deferred to the presumed greater expertise of the lower court judges in reading the ordinance. 426 U.S. at 345 (1976). [Back to text]
817
408 U.S. at 601. [Back to text]
818
419 U.S. 565 (1975). Cf. Carey v. Piphus, 435 U.S. 247 (1978) (measure of damages for violation of procedural due process in school suspension context). See also Board of Curators v. Horowitz, 435 U.S. 78 (1978) (whether liberty or property interest implicated in academic dismissals and discipline, as contrasted to disciplinary actions). [Back to text]
819
Goss v. Lopez, 419 U.S. at 574. See also Barry v. Barchi, 443 U.S. 55 (1979) (horse trainer’s license); O’Bannon v. Town Court Nursing Center, 447 U.S. 773 (1980) (statutory entitlement of nursing home residents protecting them in the enjoyment of assistance and care). [Back to text]
820
Regents of the University of Michigan v. Ewing, 474 U.S. 214 (1985). Although the Court “assume[d] the existence of a constitutionally protectible property interest in . . . continued enrollment” in a state university, this limited constitutional right is violated only by a showing that dismissal resulted from “such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment.” 474 U.S. at 225. [Back to text]
821
545 U.S. 748 (2005). [Back to text]
822
545 U.S. at 759. The Court also noted that the law did not specify the precise means of enforcement required; nor did it guarantee that, if a warrant were sought, it would be issued. Such indeterminancy is not the “hallmark of a duty that is mandatory.” Id. at 763. [Back to text]
823
545 U.S. at 764–65. [Back to text]
824
416 U.S. 134 (1974). [Back to text]
825
416 U.S. at 155 (Justices Rehnquist and Stewart and Chief Justice Burger). [Back to text]
826
416 U.S. at 154. [Back to text]
827
416 U.S. 167 (Justices Powell and Blackmun concurring). See 416 U.S. at 177 (Justice White concurring and dissenting), 203 (Justice Douglas dissenting), 206 (Justices Marshall, Douglas, and Brennan dissenting). [Back to text]
828
426 U.S. 341 (1976). A five-to-four decision, the opinion was written by Justice Stevens, replacing Justice Douglas, and was joined by Justice Powell, who had disagreed with the theory in Arnett. See id. at 350, 353 n.4, 355 (dissenting opinions). The language is ambiguous and appears at different points to adopt both positions. But see id. at 345, 347. [Back to text]
829
419 U.S. 565, 573–74 (1975). See id. at 584, 586–87 (Justice Powell dissenting). [Back to text]
830
419 U.S. at 584, 586–87 (Justice Powell dissenting). [Back to text]
831
Vitek v. Jones, 445 U.S. 480, 491 (1980). See also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985). [Back to text]
832
455 U.S. 422 (1982). [Back to text]
833
455 U.S. at 428–33 A different majority of the Court also found an equal protection denial. 455 U.S. at 438. [Back to text]
834
These procedural liberty interests should not, however, be confused with substantive liberty interests, which, if not outweighed by a sufficient governmental interest, may not be intruded upon regardless of the process followed. See “Fundamental Rights (Noneconomic Due Process),” supra. [Back to text]
835
430 U.S. 651 (1977). [Back to text]
836
430 U.S. at 673. The family-related liberties discussed under substantive due process, as well as the associational and privacy ones, no doubt provide a fertile source of liberty interests for procedural protection. See Armstrong v. Manzo, 380 U.S. 545 (1965) (natural father, with visitation rights, must be given notice and opportunity to be heard with respect to impending adoption proceedings); Stanley v. Illinois, 405 U.S. 645 (1972) (unwed father could not simply be presumed unfit to have custody of his children because his interest in his children warrants deference and protection). See also Smith v. Organization of Foster Families, 431 U.S. 816 (1977); Little v. Streater, 452 U.S. 1 (1981); Lassiter v. Department of Social Services, 452 U.S. 18 (1981); Santosky v. Kramer, 455 U.S. 745 (1982). [Back to text]
837
Board of Regents v. Roth, 408 U.S. 564, 569–70 (1972); Goss v. Lopez, 419 U.S. 565 (1975). [Back to text]
838
400 U.S. 433 (1971). [Back to text]
839
But see Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003) (posting of accurate information regarding sex offenders on state Internet website does not violate due process as the site does not purport to label the offenders as presently dangerous). [Back to text]
840
424 U.S. 693 (1976). [Back to text]
841
Here the Court, 424 U.S. at 701–10, distinguished Constantineau as being a “reputation-plus” case. That is, it involved not only the stigmatizing of one posted but it also “deprived the individual of a right previously held under state law—the right to purchase or obtain liquor in common with the rest of the citizenry.” 424 U.S. at 708. How the state law positively did this the Court did not explain. But, of course, the reputation-plus concept is now well-settled. See discussion below. See also Board of Regents v. Roth, 408 U.S. 564, 573 (1972); Siegert v. Gilley, 500 U.S. 226 (1991); Paul v. Davis, 424 U.S. 693, 711–12 (1976). In a later case, the Court looked to decisional law and the existence of common-law remedies as establishing a protected property interest. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9–12 (1978). [Back to text]
842
427 U.S. 215 (1976). See also Montanye v. Haymes, 427 U.S. 236 (1976). [Back to text]
843
445 U.S. 480 (1980). [Back to text]
844
Morrissey v. Brewer, 408 U.S. 471 (1972); Gagnon v. Scarpelli, 411 U.S. 778 (1973). [Back to text]
845
Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979); Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981); Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998); Jago v. Van Curen, 454 U.S. 14 (1981). See also Wolff v. McDonnell, 418 U.S. 539 (1974) (due process applies to forfeiture of good-time credits and other positivist granted privileges of prisoners). [Back to text]
846
Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 459–63 (1989) (prison regulations listing categories of visitors who may be excluded, but not creating a right to have a visitor admitted, contain “substantive predicates” but lack mandatory language). [Back to text]
847
Sandin v. Conner, 515 U.S. 472, 484 (1995) (30-day solitary confinement not atypical “in relation to the ordinary incidents of prison life”); Wilkinson v. Austin, 545 U.S. 209, 224 (2005) (assignment to SuperMax prison, with attendant loss of parole eligibility and with only annual status review, constitutes an “atypical and significant hardship”). [Back to text]
848
Twining v. New Jersey, 211 U.S. 78, 110 (1908); Jacob v. Roberts, 223 U.S. 261, 265 (1912). [Back to text]
849
Bi-Metallic Investment Co. v. State Bd. of Equalization, 239 U.S. 441, 445–46 (1915). See also Bragg v. Weaver, 251 U.S. 57, 58 (1919). Cf. Logan v. Zimmerman Brush Co., 445 U.S. 422, 432–33 (1982). [Back to text]
850
United States v. Florida East Coast Ry., 410 U.S. 224 (1973). [Back to text]
851
410 U.S. at 245 (distinguishing between rule-making, at which legislative facts are in issue, and adjudication, at which adjudicative facts are at issue, requiring a hearing in latter proceedings but not in the former). See Londoner v. City of Denver, 210 U.S. 373 (1908). [Back to text]
852
“It is not an indispensable requirement of due process that every procedure affecting the ownership or disposition of property be exclusively by judicial proceeding. Statutory proceedings affecting property rights which, by later resort to the courts, secures to adverse parties an opportunity to be heard, suitable to the occasion, do not deny due process.” Anderson Nat’l Bank v. Luckett, 321 U.S. 233, 246–47 (1944). [Back to text]
853
Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272 (1856). [Back to text]
854
Coffin Brothers & Co. v. Bennett, 277 U.S. 29 (1928). [Back to text]
855
Postal Telegraph Cable Co. v. Newport, 247 U.S. 464, 476 (1918); Baker v. Baker, Eccles & Co., 242 U.S. 294, 403 (1917); Louisville & Nashville R.R. v. Schmidt, 177 U.S. 230, 236 (1900). [Back to text]
856
Lindsey v. Normet, 405 U.S. 56, 65–69 (1972). However, if one would suffer too severe an injury between the doing and the undoing, he may avoid the alternative means. Stanley v. Illinois, 405 U.S. 645, 647 (1972). [Back to text]
857
American Surety Co. v. Baldwin, 287 U.S. 156 (1932). Cf. Logan v. Zimmerman Brush Co., 455 U.S. 422, 429–30, 432–33 (1982). [Back to text]
858
Saunders v. Shaw, 244 U.S. 317 (1917). [Back to text]
859
“The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be ‘condemned to suffer grievous loss,’ . . . and depends upon whether the recipient’s interest in avoiding that loss outweighs the governmental interest in summary adjudication.” Goldberg v. Kelly, 397 U.S. 254, 262–63 (1970), (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 168 (1951) (Justice Frankfurter concurring)). “The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 894–95 (1961). [Back to text]
860
424 U.S. 319, 335 (1976). [Back to text]
861
397 U.S. 254, 264 (1970). [Back to text]
862
Mathews v. Eldridge, 424 U.S. 319, 339–49 (1976). [Back to text]
863
Mitchell v. W.T. Grant Co., 416 U.S. 600, 604 (1975). See also id. at 623 (Justice Powell concurring), 629 (Justices Stewart, Douglas, and Marshall dissenting). Justice White, who wrote Mitchell and included the balancing language in his dissent in Fuentes v. Shevin, 407 U.S. 67, 99–100 (1972), did not repeat it in North Georgia Finishing v. Di-Chem, 419 U.S. 601 (1975), but it presumably underlies the reconciliation of Fuentes and Mitchell in the latter case and the application of Di-Chem. [Back to text]
864
395 U.S. 337 (1969). [Back to text]
865
North Georgia Finishing v. Di-Chem, 419 U.S. 601, 611 n.2 (1975) (Justice Powell concurring). The majority opinion draws no such express distinction, see id. at 605–06, rather emphasizing that Sniadach-Fuentes do require observance of some due process procedural guarantees. But see Mitchell v. W.T. Grant Co., 416 U.S. 600, 614 (1974) (opinion of Court by Justice White emphasizing the wages aspect of the earlier case). [Back to text]
866
407 U.S. (1972). [Back to text]
867
Fuentes was an extension of the Sniadach principle to all “significant property interests” and thus mandated pre-deprivation hearings. Fuentes was a decision of uncertain viability from the beginning, inasmuch as it was four-to-three; argument had been heard prior to the date Justices Powell and Rehnquist joined the Court, hence neither participated in the decision. See Di-Chem, 419 U.S. at 616–19 (Justice Blackmun dissenting); Mitchell, 416 U.S. at 635–36 (1974) (Justice Stewart dissenting). [Back to text]
868
Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974); North Georgia Finishing v. Di-Chem, 419 U.S. 601 (1975). More recently, the Court has applied a variant of the Mathews v. Eldridge formula in holding that Connecticut’s prejudgment attachment statute, which “fail[ed] to provide a preattachment hearing without at least requiring a showing of some exigent circumstance,” operated to deny equal protection. Connecticut v. Doehr, 501 U.S. 1, 18 (1991). “[T]he relevant inquiry requires, as in Mathews, first, consideration of the private interest that will be affected by the prejudgment measure; second, an examination of the risk of erroneous deprivation through the procedures under attack and the probable value of additional or alternative safeguards; and third, in contrast to Mathews, principal attention to the interest of the party seeking the prejudgment remedy, with, nonetheless, due regard for any ancillary interest the government may have in providing the procedure or forgoing the added burden of providing greater protections.” 501 U.S. at 11. [Back to text]
869
Mitchell v. W.T. Grant Co., 416 U.S. at 615–18 (1974) and at 623 (Justice Powell concurring). See also Arnett v. Kennedy, 416 U.S. 134, 188 (1974) (Justice White concurring in part and dissenting in part). Efforts to litigate challenges to seizures in actions involving two private parties may be thwarted by findings of “no state action,” but there often is sufficient participation by state officials in transferring possession of property to constitute state action and implicate due process. Compare Flagg Bros. v. Brooks, 436 U.S. 149 (1978) (no state action in warehouseman’s sale of goods for nonpayment of storage, as authorized by state law), with Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) (state officials’ joint participation with private party in effecting prejudgment attachment of property); and Tulsa Professional Collection Servs. v. Pope, 485 U.S. 478 (1988) (probate court was sufficiently involved with actions activating time bar in “nonclaim” statute). [Back to text]
870
Arnett v. Kennedy, 416 U.S. 134, 170–71 (1974) (Justice Powell concurring), and 416 U.S. at 195–96 (Justice White concurring in part and dissenting in part); Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) (discharge of state government employee). In Barry v. Barchi, 443 U.S. 55 (1979), the Court held that the state interest in assuring the integrity of horse racing carried on under its auspices justified an interim suspension without a hearing once it established the existence of certain facts, provided that a prompt judicial or administrative hearing would follow suspension at which the issues could be determined was assured. See also FDIC v. Mallen, 486 U.S. 230 (1988) (strong public interest in the integrity of the banking industry justifies suspension of indicted bank official with no pre-suspension hearing, and with 90-day delay before decision resulting from post-suspension hearing). [Back to text]
871
Gilbert v. Homar, 520 U.S. 924 (1997) (no hearing required prior to suspension without pay of tenured police officer arrested and charged with a felony). [Back to text]
872
E.g., Dixon v. Love, 431 U.S. 105 (1977) (when suspension of driver’s license is automatic upon conviction of a certain number of offenses, no hearing is required because there can be no dispute about facts). [Back to text]
873
Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982). [Back to text]
874
481 U.S. 252 (1987). Justice Marshall’s plurality opinion was joined by Justices Blackmun, Powell, and O’Connor; Chief Justice Rehnquist and Justice Scalia joined Justice White’s opinion taking a somewhat narrower view of due process requirements but supporting the plurality’s general approach. Justices Brennan and Stevens would have required confrontation and cross-examination. [Back to text]
875
For analysis of the case’s implications, see Rakoff, Brock v. Roadway Express, Inc., and the New Law of Regulatory Due Process, 1987 SUP. CT. REV. 157. [Back to text]
876
538 U.S. 715 (2003). [Back to text]
877
See Nelson v. Colorado, 581 U.S. ___, No. 15–1256, slip op. at 1 (2017). [Back to text]
878
See id. at 4–5 (describing Colorado’s Exoneration Act). Initially, the Court concluded that because the case concerned the “continuing deprivation of property after a [criminal] conviction” was reversed or vacated and “no further criminal process” was implicated by the case, the appropriate lens to examine the Exoneration Act was through the Mathews balancing test that generally applies in civil contexts. Id. at 5–6. The Court noted, however, that even under the test used to examine criminal due process rights—the fundamental fairness approach—Colorado’s Exoneration Act would still fail to provide adequate due process because the state’s procedures offend a fundamental principle of justice—the presumption of innocence. Id. at 7 n.9. [Back to text]
879
Id. at 1. [Back to text]
880
Id. at 6. [Back to text]
881
Id. In so concluding, the Court rejected Colorado’s argument that the money in question belonged to the state because the criminal convictions were in place at the time the funds were taken. Id. The Court reasoned that after a conviction has been reversed, the criminal defendant is presumed innocent and any funds provided to the state as a result of the conviction rightfully belong to the person who was formerly subject to the prosecution. Id. at 7 (“Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions.”) (emphasis in original). [Back to text]
882
Id. at 8–9. In particular, the Court noted that when a defendant seeks to recoup small amounts of money under the Exoneration Act, the costs of mounting a claim and retaining a lawyer “would be prohibitive,” amounting to “no remedy at all” for any minor assessments under the Act. Id. at 9. [Back to text]
883
Id. at 10. [Back to text]
884
Id. [Back to text]
885
See, e.g., Lujan v. G & G Fire Sprinklers, Inc., 523 U.S. 189 (2001) (breach of contract suit against state contractor who withheld payment to subcontractor based on state agency determination of noncompliance with Labor Code sufficient for due process purposes). [Back to text]
886
Ingraham v. Wright, 430 U.S. 651, 680–82 (1977). [Back to text]
887
Ingraham v. Wright, 430 U.S. 651, 680–82 (1977). In Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 19–22 (1987), involving cutoff of utility service for non-payment of bills, the Court rejected the argument that common-law remedies were sufficient to obviate the pre-termination hearing requirement. [Back to text]
888
Logan v. Zimmerman Brush Co., 455 U.S. at 435–36 (1982). The Court emphasized that a post-deprivation hearing regarding harm inflicted by a state procedure would be inadequate. “That is particularly true where, as here, the State’s only post-termination process comes in the form of an independent tort action. Seeking redress through a tort suit is apt to be a lengthy and speculative process, which in a situation such as this one will never make the complainant entirely whole.” 455 U.S. 422, 436–37. [Back to text]
889
455 U.S. at 436. [Back to text]
890
More expressly adopting the tort remedy theory, the Court in Parratt v. Taylor, 451 U.S. 527 (1981), held that the loss of a prisoner’s mail-ordered goods through the negligence of prison officials constituted a deprivation of property, but that the state’s post-deprivation tort-claims procedure afforded adequate due process. When a state officer or employee acts negligently, the Court recognized, there is no way that the state can provide a pre-termination hearing; the real question, therefore, is what kind of post-deprivation hearing is sufficient. When the action complained of is the result of the unauthorized failure of agents to follow established procedures and there is no contention that the procedures themselves are inadequate, the Due Process Clause is satisfied by the provision of a judicial remedy which the claimant must initiate. 451 U.S. at 541, 543–44. It should be noted that Parratt was a property loss case, and thus may be distinguished from liberty cases, where a tort remedy, by itself, may not be adequate process. See Ingraham v. Wright, 430 U.S. at 680–82. [Back to text]
891
Daniels v. Williams, 474 U.S. 327, 328 (1986) (involving negligent acts by prison officials). Hence, there is no requirement for procedural due process stemming from such negligent acts and no resulting basis for suit under 42 U.S.C. § 1983 for deprivation of rights deriving from the Constitution. Prisoners may resort to state tort law in such circumstances, but neither the Constitution nor § 1983 provides a federal remedy. [Back to text]
892
Board of Regents v. Roth, 408 U.S. 564, 570 n.7 (1972); Bell v. Burson, 402 U.S. 535, 542 (1971). See Parratt v. Taylor, 451 U.S. 527, 538–40 (1981). Of course, one may waive his due process rights, though as with other constitutional rights, the waiver must be knowing and voluntary. D.H. Overmyer Co. v. Frick Co., 405 U.S. 174 (1972). See also Fuentes v. Shevin, 407 U.S. 67, 94–96 (1972). [Back to text]
893
North American Cold Storage Co. v. City of Chicago, 211 U.S. 306 (1908); Ewing v. Mytinger & Casselberry, 339 U.S. 594 (1950). See also Fahey v. Mallonee, 332 U.S. 245 (1948). Cf. Mackey v. Montrym, 443 U.S. 1, 17–18 (1979). [Back to text]
894
Phillips v. Commissioner, 283 U.S. 589, 597 (1931). [Back to text]
895
Central Union Trust Co. v. Garvan, 254 U.S. 554, 566 (1921). [Back to text]
896
Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886 (1961). [Back to text]
897
367 U.S. at 894, 895, 896 (1961). [Back to text]
898
367 U.S. at 896–98. See Goldberg v. Kelly, 397 U.S. 254, 263 n.10 (1970); Board of Regents v. Roth, 408 U.S. 564, 575 (1972); Arnett v. Kennedy, 416 U.S. 134, 152 (1974) (plurality opinion), and 416 U.S. at 181–183 (Justice White concurring in part and dissenting in part). [Back to text]
899
Scott v. McNeal, 154 U.S. 34, 64 (1894). [Back to text]
900
95 U.S. 714 (1878). [Back to text]
901
Although these two principles were drawn from the writings of Joseph Story refining the theories of continental jurists, Hazard, A General Theory of State-Court Jurisdiction, 1965 SUP. CT. REV. 241, 252–62, the constitutional basis for them was deemed to be in the Due Process Clause of the Fourteenth Amendment. Pennoyer v. Neff, 95 U.S. 714, 733–35 (1878). The Due Process Clause and the remainder of the Fourteenth Amendment had not been ratified at the time of the entry of the state-court judgment giving rise to the case. This inconvenient fact does not detract from the subsequent settled use of this constitutional foundation. Pennoyer denied full faith and credit to the judgment because the state lacked jurisdiction. [Back to text]
902
95 U.S. at 722. The basis for the territorial concept of jurisdiction promulgated in Pennoyer and modified over the years is two-fold: a concern for “fair play and substantial justice” involved in requiring defendants to litigate cases against them far from their “home” or place of business. International Shoe Co. v. Washington, 326 U.S. 310, 316, 317 (1945); Travelers Health Ass’n v. Virginia ex rel. State Corp. Comm., 339 U.S. 643, 649 (1950); Shaffer v. Heitner, 433 U.S. 186, 204 (1977), and, more important, a concern for the preservation of federalism. International Shoe Co. v. Washington, 326 U.S. 310, 319 (1945); Hanson v. Denckla, 357 U.S. 235, 251 (1958). The Framers, the Court has asserted, while intending to tie the States together into a Nation, “also intended that the States retain many essential attributes of sovereignty, including, in particular, the sovereign power to try causes in their courts. The sovereignty of each State, in turn, implied a limitation on the sovereignty of all its sister States—a limitation express or implicit in both the original scheme of the Constitution and the Fourteenth Amendment.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 293 (1980). Thus, the federalism principle is preeminent. “[T]he Due Process Clause ‘does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations.’ . . . Even if the defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; even if the forum State has a strong interest in applying its law to the controversy; even if the forum State is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid judgment.” 444 U.S. at 294 (internal quotation from International Shoe Co. v. Washington, 326 U.S. 310, 319 (1945)). [Back to text]
903
International Shoe Co. v. Washington, 326 U.S. 310 (1945)). As the Court explained in McGee v. International Life Ins. Co., 355 U.S. 220, 223 (1957), “[w]ith this increasing nationalization of commerce has come a great increase in the amount of business conducted by mail across state lines. At the same time modern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity.” See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 293 (1980)). The first principle, that a State may assert jurisdiction over anyone or anything physically within its borders, no matter how briefly there—the so-called “transient” rule of jurisdiction— McDonald v. Mabee, 243 U.S. 90, 91 (1917), remains valid, although in Shaffer v. Heitner, 433 U.S. 186, 204 (1977), the Court’s dicta appeared to assume it is not. [Back to text]
904
National Exchange Bank v. Wiley, 195 U.S. 257, 270 (1904); Iron Cliffs Co. v. Negaunee Iron Co., 197 U.S. 463, 471 (1905). [Back to text]
905
McDonald v. Mabee, 243 U.S. 90, 91 (1917). Cf. Michigan Trust Co. v. Ferry, 228 U.S. 346 (1913). The rule has been strongly criticized but persists. Ehrenzweig, The Transient Rule of Personal Jurisdiction: The ‘Power’ Myth and Forum Conveniens, 65 YALE L. J. 289 (1956). But in Burnham v. Superior Court, 495 U.S. 604 (1990), the Court held that service of process on a nonresident physically present within the state satisfies due process regardless of the duration or purpose of the nonresident’s visit. [Back to text]
906
Milliken v. Meyer, 311 U.S. 457 (1940). [Back to text]
907
McDonald v. Mabee, 243 U.S. 90 (1917). [Back to text]
908
Rees v. City of Watertown, 86 U.S. (19 Wall.) 107 (1874); Coe v. Armour Fertilizer Works, 237 U.S. 413, 423 (1915); Griffin v. Griffin, 327 U.S. 220 (1946). [Back to text]
909
Sugg v. Thornton, 132 U.S. 524 (1889); Riverside Mills v. Menefee, 237 U.S. 189, 193 (1915); Hess v. Pawloski, 274 U.S. 352, 355 (1927). See also Harkness v. Hyde, 98 U.S. 476 (1879); Wilson v. Seligman, 144 U.S. 41 (1892). [Back to text]
910
Louisville & Nashville R.R. v. Schmidt, 177 U.S. 230 (1900); Western Loan & Savings Co. v. Butte & Boston Min. Co., 210 U.S. 368 (1908); Houston v. Ormes, 252 U.S. 469 (1920). See also Adam v. Saenger, 303 U.S. 59 (1938) (plaintiff suing defendants deemed to have consented to jurisdiction with respect to counterclaims asserted against him). [Back to text]
911
State legislation which provides that a defendant who comes into court to challenge the validity of service upon him in a personal action surrenders himself to the jurisdiction of the court, but which allows him to dispute where process was served, is constitutional and does not deprive him of property without due process of law. In such a situation, the defendant may ignore the proceedings as wholly ineffective, and attack the validity of the judgment if and when an attempt is made to take his property thereunder. If he desires, however, to contest the validity of the court proceedings and he loses, it is within the power of a state to require that he submit to the jurisdiction of the court to determine the merits. York v. Texas, 137 U.S. 15 (1890); Kauffman v. Wootters, 138 U.S. 285 (1891); Western Life Indemnity Co. v. Rupp, 235 U.S. 261 (1914). [Back to text]
912
Hess v. Pawloski, 274 U.S. 352 (1927); Wuchter v. Pizzutti, 276 U.S. 13 (1928); Olberding v. Illinois Cent. R.R., 346 U.S. 338, 341 (1953). [Back to text]
913
Hess v. Pawloski, 274 U.S. 352, 356–57 (1927). [Back to text]
914
274 U.S. at 355. See Flexner v. Farson, 248 U.S. 289, 293 (1919). [Back to text]
915
Henry L. Doherty & Co. v. Goodman, 294 U.S. 623 (1935). [Back to text]
916
326 U.S. 310, 316 (1945). [Back to text]
917
436 U.S. 84 (1978). [Back to text]
918
Kulko had visited the state twice, seven and six years respectively before initiation of the present action, his marriage occurring in California on the second visit, but neither the visits nor the marriage was sufficient or relevant to jurisdiction. 436 U.S. at 92–93. [Back to text]
919
436 U.S. at 92. [Back to text]
920
436 U.S. at 96–98. [Back to text]
921
571 U.S. ___, No. 12–574, slip op. (2014). This type of “jurisdiction” is often referred to as “specific jurisdiction.” [Back to text]
922
Id. at 6–8. [Back to text]
923
Cf. Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 588 (1839). [Back to text]
924
326 U.S. 310 (1945). [Back to text]
925
Lafayette Ins. Co. v. French, 59 U.S. (18 How.) 404 (1855); St. Clair v. Cox, 196 U.S. 350 (1882); Commercial Mutual Accident Co. v. Davis, 213 U.S. 245 (1909); Simon v. Southern Ry., 236 U.S. 115 (1915); Pennsylvania Fire Ins. Co. v. Gold Issue Mining Co., 243 U.S. 93 (1917). [Back to text]
926
Presence was first independently used to sustain jurisdiction in International Harvester Co. v. Kentucky, 234 U.S. 579 (1914), although the possibility was suggested as early as St. Clair v. Cox, 106 U.S. 350 (1882). See also Philadelphia & Reading Ry. v. McKibbin, 243 U.S. 264, 265 (1917) (Justice Brandeis for Court). [Back to text]
927
E.g., Pennsylvania Fire Ins. Co. v. Gold Issue Mining & Milling Co., 243 U.S. 93 (1917); St. Louis S.W. Ry. v. Alexander, 227 U.S. 218 (1913). [Back to text]
928
Daimler AG v. Bauman, 571 U.S. ___, No. 11–965, slip op. at 8 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 920 (2011)) (holding Daimler Chrysler, a German public stock company, could not be subject to suit in California with respect to acts taken in Argentina by Argentinian subsidiary of Daimler, notwithstanding the fact that Daimler Chrysler had a U.S. subsidiary that did business in California). [Back to text]
929
Id. at 18–19. [Back to text]
930
Id. at 20 n. 19. For example, the Court held that an Ohio court could exercise general jurisdiction over a defendant corporation that was forced to relocate temporarily from the Philippines to Ohio, making Ohio the “center” of the corporation’s activities. See Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 447–48 (1952). [Back to text]
931
See BNSF R.R. Co. v. Tyrrell, 581 U.S. ___, No. 16–405, slip op. at 11–12 (2017) (holding that Montana courts could not exercise general jurisdiction over a railroad company that had over 2,000 miles of track and more than 2,000 employees in the state because the company was not incorporated or headquarted in Montana and the overall activity of the company in Montana was not “so substantial” as to render the corporation “at home” in the state). [Back to text]
932
E.g., Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408 (1984); Davis v. Farmers Co-operative Co., 262 U.S. 312 (1923); Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U.S. 516 (1923); Simon v. S. Ry., 236 U.S. 115, 129–30 (1915); Green v. Chicago, B. & Q. Ry., 205 U.S. 530 (1907); Old Wayne Life Ass’n v. McDonough, 204 U.S. 8 (1907). Continuous operations were sometimes sufficiently substantial and of a nature to warrant assertions of jurisdiction. St. Louis S.W. Ry. Co. v. Alexander, 227 U.S. 218 (1913); see also Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 922 (2011) (distinguishing application of stream-of-commerce analysis in specific cases of in-state injury from the degree of presence a corporation must maintain in a state to be amenable to general jurisdiction there). [Back to text]
933
Robert Mitchell Furn. Co. v. Selden Breck Constr. Co., 257 U.S. 213 (1921); Chipman, Ltd. v. Thomas B. Jeffery Co., 251 U.S. 373, 379 (1920). Jurisdiction would continue, however, if a state had conditioned doing business on a firm’s agreeing to accept service through state officers should it and its agent withdraw. Washington ex rel. Bond & Goodwin & Tucker v. Superior Court, 289 U.S. 361, 364 (1933). [Back to text]
934
Solicitation of business alone was inadequate to constitute “doing business,” Green, 205 U.S. at 534, but when connected with other activities could suffice to confer jurisdiction. Int’l Harvester Co. v. Kentucky, 234 U.S. 579 (1914). Hutchinson v. Chase & Gilbert, 45 F.2d 139, 141–42 (2d Cir. 1930) (Hand, J., providing survey of cases). [Back to text]
935
E.g., Riverside Mills v. Menefee, 237 U.S. 189, 195 (1915); Conley v. Mathieson Alkali Works, 190 U.S. 406 (1903); Goldey v. Morning News, 156 U.S. 518 (1895); but see Conn. Mut. Life Ins. Co. v. Spratley, 172 U.S. 602 (1899). [Back to text]
936
326 U.S. 310 (1945). [Back to text]
937
This departure was recognized by Justice Rutledge subsequently in Nippert v. City of Richmond, 327 U.S. 416, 422 (1946). Because International Shoe, in addition to having its agents solicit orders, also permitted them to rent quarters for the display of merchandise, the Court could have used International Harvester Co. v. Kentucky, 234 U.S. 579 (1914), to find it was “present” in the state. [Back to text]
938
International Shoe Co. v. Washington, 326 U.S. 310, 316–17 (1945). [Back to text]
939
326 U.S. at 319. [Back to text]
940
Travelers Health Ass’n v. Virginia ex rel. State Corp. Comm’n, 339 U.S. 643 (1950). The decision was 5-to-4 with one of the majority Justices also contributing a concurring opinion. Id. at 651 (Justice Douglas). The possible significance of the concurrence is that it appears to disagree with the implication of the majority opinion, id. at 647–48, that a state’s legislative jurisdiction and its judicial jurisdiction are coextensive. Id. at 652–53 (distinguishing between the use of the state’s judicial power to enforce its legislative powers and the judicial jurisdiction when a private party is suing). See id. at 659 (dissent). [Back to text]
941
339 U.S. at 647–49. The holding in Minnesota Commercial Men’s Ass’n v. Benn, 261 U.S. 140 (1923), that a similar mail order insurance company could not be viewed as doing business in the forum state and that the circumstances under which its contracts with forum state citizens, executed and to be performed in its state of incorporation, were consummated could not support an implication that the foreign company had consented to be sued in the forum state, was distinguished rather than formally overruled. 339 U.S. at 647. In any event, Benn could not have survived McGee v. International Life Ins. Co., 355 U.S. 220 (1957), below. [Back to text]
942
McGee v. International Life Ins. Co., 355 U.S. 220 (1957). [Back to text]
943
355 U.S. at 223. The Court also noticed the proposition that the insured could not bear the cost of litigation away from home as well as the insurer. See also Perkins v. Benguet Consolidating Mining Co., 342 U.S. 437 (1952), a case too atypical on its facts to permit much generalization but which does appear to verify the implication of International Shoe that in personam jurisdiction may attach to a corporation even where the cause of action does not arise out of the business done by defendant in the forum state, as well as to state, in dictum, that the mere presence of a corporate official within the state on business of the corporation would suffice to create jurisdiction if the claim arose out of that business and service were made on him within the state. 342 U.S. at 444–45. The Court held that the state could, but was not required to, assert jurisdiction over a corporation owning gold and silver mines in the Philippines but temporarily (because of the Japanese occupation) carrying on a part of its general business in the forum state, including directors’ meetings, business correspondence, banking, and the like, although it owned no mining properties in the state. [Back to text]
944
McGee v. International Life Ins. Co., 355 U.S. 220, 222 (1957). An exception exists with respect to in personam jurisdiction in domestic relations cases, at least in some instances. E.g., Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957) (holding that sufficient contacts afforded Nevada in personam jurisdiction over a New York resident wife for purposes of dissolving the marriage but Nevada did not have jurisdiction to terminate the wife’s claims for support). [Back to text]
945
357 U.S. 235 (1958). The decision was 5-to-4. See 357 U.S. at 256 (Justice Black dissenting), 262 (Justice Douglas dissenting). [Back to text]
946
357 U.S. at 251. In dissent, Justice Black observed that “of course we have not reached the point where state boundaries are without significance and I do not mean to suggest such a view here.” 357 U.S. at 260. [Back to text]
947
357 U.S. at 251, 253–54. Upon an analogy of choice of law and forum non conveniens, Justice Black argued that the relationship of the nonresident defendants and the subject of the litigation to the Florida made Florida the natural and constitutional basis for asserting jurisdiction. 357 U.S. at 251, 258–59. The Court has numerous times asserted that contacts sufficient for the purpose of designating a particular state’s law as appropriate may be insufficient for the purpose of asserting jurisdiction. See Shaffer v. Heitner, 433 U.S. 186, 215 (1977); Kulko v. Superior Court, 436 U.S. 84, 98 (1978); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 294–95 (1980). On the due process limits on choice of law decisions, see Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981). [Back to text]
948
Keeton v. Hustler Magazine, 465 U.S. 770 (1984) (holding as well that the forum state may apply “single publication rule” making defendant liable for nation-wide damages). [Back to text]
949
Calder v. Jones, 465 U.S. 783 (1984) (jurisdiction over reporter and editor responsible for defamatory article which they knew would be circulated in subject’s home state). [Back to text]
950
Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985). But cf. Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408 (1984) (purchases and training within state, both unrelated to cause of action, are insufficient to justify general in personam jurisdiction). [Back to text]
951
444 U.S. 286 (1980). [Back to text]
952
444 U.S. at 297. [Back to text]
953
444 U.S. at 298. [Back to text]
954
480 U.S. 102 (1987). In Asahi, a California resident sued, inter alia, a Taiwanese tire tube manufacturer for injuries caused by a blown-out motorcycle tire. After plaintiff and the tube manufacturer settled the case, which had been filed in California, the tube manufacturer sought indemnity in the California courts against Asahi Metal, the Japanese supplier of the tube’s valve assembly. [Back to text]
955
All the Justices also agreed that due process considerations foreclosed jurisdiction in Asahi, even though Asahi Metal could have foreseen that some of its valve assemblies would end up incorporated into tire tubes sold in the United States. Three of the Asahi Justices had been dissenters in World-Wide Volkswagen Corp. v. Woodson. Of the three dissenters, Justice Brennan had argued that the “minimum contacts” test was obsolete and that jurisdiction should be predicated upon the balancing of the interests of the forum state and plaintiffs against the actual burden imposed on defendant, 444 U.S. at 299, while Justices Marshall and Blackmun had applied the test and found jurisdiction because of the foreseeability of defendants that a defective product of theirs might cause injury in a distant state and because the defendants had entered into an interstate economic network. 444 U.S. at 313. [Back to text]
956
480 U.S. at 109–113 (1987). Agreeing with Justice O’Connor on this test were Chief Justice Rehnquist and Justices Powell and Scalia. [Back to text]
957
564 U.S. ___, No. 09–1343, slip op. (2011). [Back to text]
958
564 U.S. ___, No. 09–1343, slip op. (2011) (Kennedy, Roberts, Scalia and Thomas). [Back to text]
959
564 U.S. ___, No. 09–1343, slip op. (2011) (Breyer and Alito concurring). [Back to text]
960
Daimler AG v. Bauman, 571 U.S. ___, No. 11–965, slip op. at 8 (2014). [Back to text]
961
Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco Cty., 582 U.S. ___, No. 16–466, slip op. at 7 (2017). [Back to text]
962
Id. at 7. [Back to text]
963
Id. A court may exercise “general” jurisdiction for any claim—even if all the incidents underlying the claim occurred in a different state—against an individual in that person’s domicile or against a corporation where the corporation is fairly regarded as “at home,” such as the company’s place of incorporation or headquarters. See Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919–24 (2011). [Back to text]
964
See Bristol-Myers Squibb Co., slip op. at 8. [Back to text]
965
Accordingly, by reason of its inherent authority over titles to land within its territorial confines, a state court could proceed to judgment respecting the ownership of such property, even though it lacked a constitutional competence to reach claimants of title who resided beyond its borders. Arndt v. Griggs, 134 U.S. 316, 321 (1890); Grannis v. Ordean, 234 U.S. 385 (1914); Pennington v. Fourth Nat’l Bank, 243 U.S. 269, 271 (1917). [Back to text]
966
Boswell’s Lessee v. Otis, 50 U.S. (9 How.) 336, 348 (1850). [Back to text]
967
American Land Co. v. Zeiss, 219 U.S. 47 (1911); Tyler v. Judges of the Court of Registration, 175 Mass. 71, 76, 55 N.E. 812, 814 (Chief Justice Holmes), appeal dismissed, 179 U.S. 405 (1900). [Back to text]
968
Huling v. Kaw Valley Ry. & Improvement Co., 130 U.S. 559 (1889). [Back to text]
969
The Confiscation Cases, 87 U.S. (20 Wall.) 92 (1874). [Back to text]
970
Clarke v. Clarke, 178 U.S. 186 (1900); Riley v. New York Trust Co., 315 U.S. 343 (1942). [Back to text]
971
Pennoyer v. Neff, 95 U.S. 714 (1878). Predeprivation notice and hearing may be required if the property is not the sort that, given advance warning, could be removed to another jurisdiction, destroyed, or concealed. United States v. James Daniel Good Real Property, 510 U.S. 43 (1993) (notice to owner required before seizure of house by government). [Back to text]
972
Arndt v. Griggs, 134 U.S. 316 (1890); Ballard v. Hunter, 204 U.S. 241 (1907); Security Savings Bank v. California, 263 U.S. 282 (1923). [Back to text]
973
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950); Walker v. City of Hutchinson, 352 U.S. 112 (1956); Schroeder v. City of New York, 371 U.S. 208 (1962); Robinson v. Hanrahan, 409 U.S. 38 (1972). [Back to text]
974
433 U.S. 186 (1977). [Back to text]
975
433 U.S. at 207–08 (footnotes omitted). The Court also suggested that the state would usually have jurisdiction in cases such as those arising from injuries suffered on the property of an absentee owner, where the defendant’s ownership of the property is conceded but the cause of action is otherwise related to rights and duties growing out of that controversy. Id. [Back to text]
976
95 U.S. 714 (1878). Cf. Pennington v. Fourth Nat’l Bank, 243 U.S. 269, 271 (1917); Corn Exch. Bank v. Commissioner, 280 U.S. 218, 222 (1930); Endicott Co. v. Encyclopedia Press, 266 U.S. 285, 288 (1924). [Back to text]
977
The theory was that property is always in possession of an owner, and that seizure of the property will inform him. This theory of notice was disavowed sooner than the theory of jurisdiction. See “Actions in Rem: Proceedings Against Property”, supra. [Back to text]
978
Other, quasi in rem actions, which are directed against persons, but ultimately have property as the subject matter, such as probate, Goodrich v. Ferris, 214 U.S. 71, 80 (1909), and garnishment of foreign attachment proceedings, Pennington v. Fourth Nat’l Bank, 243 U.S. 269, 271 (1917); Harris v. Balk, 198 U.S. 215 (1905), might also be prosecuted to conclusion without requiring the presence of all parties in interest. The jurisdictional requirements for rendering a valid divorce decree are considered under the Full Faith and Credit Clause, Art. I, § 1. [Back to text]
979
Atkinson v. Superior Court, 49 Cal. 2d 338, 316 P. 2d 960 (1957), appeal dismissed, 357 U.S. 569 (1958) (debt seized in California was owed to a New Yorker, but it had arisen out of transactions in California involving the New Yorker and the California plaintiff). [Back to text]
980
17 N.Y. 2d 111, 269 N.Y.S. 2d 99, 216 N.E. 2d 312 (1966). [Back to text]
981
198 U.S. 215 (1905). [Back to text]
982
Compare New York Life Ins. Co. v. Dunlevy, 241 U.S. 518 (1916) (action purportedly against property within state, proceeds of an insurance policy, was really an in personam action against claimant and, claimant not having been served, the judgment is void). But see Western Union Tel. Co. v. Pennsylvania, 368 U.S. 71 (1961). [Back to text]
983
433 U.S. 186 (1977). [Back to text]
984
433 U.S. at 207 (internal quotation from RESTATEMENT (SECOND
) OF CONFLICT OF LAWS 56, Introductory Note (1971)).
[Back to text]
985
433 U.S. at 207. The characterization of actions in rem as being not actions against a res but against persons with interests merely reflects Justice Holmes’ insight in Tyler v. Judges of the Court of Registration, 175 Mass. 71, 76–77, 55 N.E., 812, 814, appeal dismissed, 179 U.S. 405 (1900). [Back to text]
986
444 U.S. 320 (1980). [Back to text]
987
444 U.S. at 328–30. In dissent, Justices Brennan and Stevens argued that what the state courts had done was the functional equivalent of direct-action statutes. Id. at 333 (Justice Stevens); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 299 (1980) (Justice Brennan). The Court, however, refused so to view the Minnesota garnishment action, saying that “[t]he State’s ability to exert its power over the ‘nominal defendant’ is analytically prerequisite to the insurer’s entry into the case as a garnishee.” Id. at 330–31. Presumably, the comment is not meant to undermine the validity of such direct-action statutes, which was upheld in Watson v. Employers Liability Assurance Corp., 348 U.S. 66 (1954), a choice-of-law case rather than a jurisdiction case. [Back to text]
988
See O’Conner v. Lee-Hy Paving Corp., 579 F.2d 194 (2d Cir. 1978), cert. denied, 439 U.S. 1034 (1978). [Back to text]
989
Goodrich v. Ferris, 214 U.S. 71, 80 (1909); McCaughey v. Lyall, 224 U.S. 558 (1912). [Back to text]
990
Baker v. Baker, Eccles & Co., 242 U.S. 394 (1917); Riley v. New York Trust Co., 315 U.S. 343 (1942). [Back to text]
991
315 U.S. at 353. [Back to text]
992
357 U.S. 235 (1957). [Back to text]
993
The in personam aspect of this decision is considered supra. [Back to text]
994
She reserved the power to appoint the remainder, after her reserved life estate, either by testamentary disposition or by inter vivos instrument. After she moved to Florida, she executed a new will and a new power of appointment under the trust, which did not satisfy the requirements for testamentary disposition under Florida law. Upon her death, dispute arose as to whether the property passed pursuant to the terms of the power of appointment or in accordance with the residuary clause of the will. [Back to text]
995
357 U.S. at 246. [Back to text]
996
357 U.S. at 247–50. The four dissenters, Justices Black, Burton, Brennan, and Douglas, believed that the transfer in Florida of $400,000 made by a domiciliary and affecting beneficiaries, almost all of whom lived in that state, gave rise to a sufficient connection with Florida to support an adjudication by its courts of the effectiveness of the transfer. 357 U.S. at 256, 262. [Back to text]
997
See discussion of Pennoyer, supra. [Back to text]
998
Hamilton v. Brown, 161 U.S. 256 (1896); Security Savings Bank v. California, 263 U.S. 282 (1923). See also Voeller v. Neilston Co., 311 U.S. 531 (1941). [Back to text]
999
339 U.S. 306 (1950). [Back to text]
1000
A related question is which state has the authority to escheat a corporate debt. See Western Union Tel. Co. v. Pennsylvania, 368 U.S. 71 (1961); Texas v. New Jersey, 379 U.S. 674 (1965). Where a state seeks to escheat intangible corporate property such as uncollected debt, the Court found that the multiplicity of states with a possible interest made a “contacts” test unworkable. Citing ease of administration rather than logic or jurisdiction, the Court held that the authority to take the uncollected claims against a corporation by escheat would be based on whether the last known address on the company’s books for the each creditor was in a particular state. [Back to text]
1001
“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). “There . . . must be a basis for the defendant’s amenability to service of summons. Absent consent, this means there must be authorization for service of summons on the defendant.” Omni Capital Int’l v. Rudolph Wolff & Co., 484 U.S. 97 (1987). [Back to text]
1002
McDonald v. Mabee, 243 U.S. 90, 92 (1971). [Back to text]
1003
Greene v. Lindsey, 456 U.S. 444, 449 (1982). See Dusenbery v. United States, 534 U.S. 161 (2001) (upholding a notice of forfeiture that was delivered by certified mail to the mailroom of a prison where the individual to be served was incarcerated, even though the individual himself did not sign for the letter). [Back to text]
1004
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Thus, in Jones v. Flowers, 547 U.S. 220 (2006), the Court held that, after a state’s certified letter, intended to notify a property owner that his property would be sold unless he satisfied a tax delinquency, was returned by the post office marked “unclaimed,” the state should have taken additional reasonable steps to notify the property owner, as it would have been practicable for it to have done so. And, in Greene v. Lindsey, 456 U.S. 444 (1982), the Court held that, in light of substantial evidence that notices posted on the doors of apartments in a housing project in an eviction proceeding were often torn down by children and others before tenants ever saw them, service by posting did not satisfy due process. Without requiring service by mail, the Court observed that the mails “provide an ‘efficient and inexpensive means of communication’ upon which prudent men will ordinarily rely in the conduct of important affairs.” Id. at 455 (citations omitted). See also Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983) (personal service or notice by mail is required for mortgagee of real property subject to tax sale, Tulsa Professional Collection Servs. v. Pope, 485 U.S. 478 (1988) (notice by mail or other appropriate means to reasonably ascertainable creditors of probated estate). [Back to text]
1005
E.g., McGee v. International Life Ins. Co., 355 U.S. 220 (1957); Travelers Health Ass’n ex rel. State Corp. Comm’n, 339 U.S. 643 (1950). [Back to text]
1006
See, e.g., G.D. Searle & Co. v. Cohn, 455 U.S. 404, 409–12 (1982) (discussing New Jersey’s “long-arm” rule, under which a plaintiff must make every effort to serve process upon someone within the state and then, only if “after diligent inquiry and effort personal service cannot be made” within the state, “service may be made by mailing, by registered or certified mail, return receipt requested, a copy of the summons and complaint to a registered agent for service, or to its principal place of business, or to its registered office.”). Cf. Velmohos v. Maren Engineering Corp., 83 N.J. 282, 416 A.2d 372 (1980), vacated and remanded, 455 U.S. 985 (1982). [Back to text]
1007
Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985). [Back to text]
1008
E.g., Watson v. Employers Liability Assurance Corp., 348 U.S. 66 (1954) (authorizing direct action against insurance carrier rather than against the insured). [Back to text]
1009
Holmes v. Conway, 241 U.S. 624, 631 (1916); Louisville & Nashville R.R. v. Schmidt, 177 U.S. 230, 236 (1900). A state “is free to regulate procedure of its courts in accordance with it own conception of policy and fairness unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934); West v. Louisiana, 194 U.S. 258, 263 (1904); Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226 (1897); Jordan v. Massachusetts, 225 U.S. 167, 176, (1912). The power of a state to determine the limits of the jurisdiction of its courts and the character of the controversies which shall be heard in them and to deny access to its courts is also subject to restrictions imposed by the Contract, Full Faith and Credit, and Privileges and Immunities Clauses of the Constitution. Angel v. Bullington, 330 U.S. 183 (1947). [Back to text]
1010
Insurance Co. v. Glidden Co., 284 U.S. 151, 158 (1931); Iowa Central Ry. v. Iowa, 160 U.S. 389, 393 (1896); Honeyman v. Hanan, 302 U.S. 375 (1937). See also Lindsey v. Normet, 405 U.S. 56 (1972). [Back to text]
1011
Cincinnati Street Ry. v. Snell, 193 U.S. 30, 36 (1904). [Back to text]
1012
Some recent decisions, however, have imposed some restrictions on state procedures that require substantial reorientation of process. While this is more generally true in the context of criminal cases, in which the appellate process and post-conviction remedial process have been subject to considerable revision in the treatment of indigents, some requirements have also been imposed in civil cases. Boddie v. Connecticut, 401 U.S. 371 (1971); Lindsey v. Normet, 405 U.S. 56, 74–79 (1972); Santosky v. Kramer, 455 U.S. 745 (1982). Review has, however, been restrained with regard to details. See, e.g., Lindsey v. Normet, 405 U.S. at 64–69. [Back to text]
1013
Ownbey v. Morgan, 256 U.S. 94, 112 (1921). Thus the Fourteenth Amendment does not constrain the states to accept modern doctrines of equity, or adopt a combined system of law and equity procedure, or dispense with all necessity for form and method in pleading, or give untrammeled liberty to amend pleadings. Note that the Supreme Court did once grant review to determine whether due process required the states to provide some form of post-conviction remedy to assert federal constitutional violations, a review that was mooted when the state enacted such a process. Case v. Nebraska, 381 U.S. 336 (1965). When a state, however, through its legal system exerts a monopoly over the pacific settlement of private disputes, as with the dissolution of marriage, due process may well impose affirmative obligations on that state. Boddie v. Connecticut, 401 U.S. 371, 374–77 (1971). [Back to text]
1014
Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). Nor did the retroactive application of this statutory requirement to actions pending at the time of its adoption violate due process as long as no new liability for expenses incurred before enactment was imposed thereby and the only effect thereof was to stay such proceedings until the security was furnished. [Back to text]
1015
Boddie v. Connecticut, 401 U.S. 371 (1971). See also Little v. Streater, 452 U.S. 1 (1981) (state-mandated paternity suit); Lassiter v. Department of Social Services, 452 U.S. 18 (1981) (parental status termination proceeding); Santosky v. Kramer, 455 U.S. 745 (1982) (permanent termination of parental custody). [Back to text]
1016
Young Co. v. McNeal-Edwards Co., 283 U.S. 398 (1931); Adam v. Saenger, 303 U.S. 59 (1938). [Back to text]
1017
Jones v. Union Guano Co., 264 U.S. 171 (1924). [Back to text]
1018
Sawyer v. Piper, 189 U.S. 154 (1903). [Back to text]
1019
Grant Timber & Mfg. Co. v. Gray, 236 U.S. 133 (1915). [Back to text]
1020
Lindsey v. Normet, 405 U.S. 56, 64–69 (1972). See also Bianchi v. Morales, 262 U.S. 170 (1923) (upholding mortgage law providing for summary foreclosure of a mortgage without allowing any defense except payment).. [Back to text]
1021
Bowersock v. Smith, 243 U.S. 29, 34 (1917); Chicago, R.I. & P. Ry. v. Cole, 251 U.S. 54, 55 (1919); Herron v. Southern Pacific Co., 283 U.S. 91 (1931). See also Martinez v. California, 444 U.S. 277, 280–83 (1980) (state interest in fashioning its own tort law permits it to provide immunity defenses for its employees and thus defeat recovery). [Back to text]
1022
Ownbey v. Morgan, 256 U.S. 94 (1921). [Back to text]
1023
Ballard v. Hunter, 204 U.S. 241, 259 (1907). [Back to text]
1024
Missouri, Kansas & Texas Ry. v. Cade, 233 U.S. 642, 650 (1914). [Back to text]
1025
Walters v. National Ass’n of Radiation Survivors, 473 U.S. 305 (1985) (limitation of attorneys’ fees to $10 in veterans benefit proceedings does not violate claimants’ Fifth Amendment due process rights absent a showing of probability of error in the proceedings that presence of attorneys would sharply diminish). See also United States Dep’t of Labor v. Triplett, 494 U.S. 715 (1990) (upholding regulations under the Black Lung Benefits Act prohibiting contractual fee arrangements). [Back to text]
1026
Lowe v. Kansas, 163 U.S. 81 (1896). Consider, however, the possible bearing of Giaccio v. Pennsylvania, 382 U.S. 399 (1966) (statute allowing jury to impose costs on acquitted defendant, but containing no standards to guide discretion, violates due process). [Back to text]
1027
Yazoo & Miss. R.R. v. Jackson Vinegar Co., 226 U.S. 217 (1912); Chicago & Northwestern Ry. v. Nye Schneider Fowler Co., 260 U.S. 35, 43–44 (1922); Hartford Life Ins. Co. v. Blincoe, 255 U.S. 129, 139 (1921); Life & Casualty Co. v. McCray, 291 U.S. 566 (1934). [Back to text]
1028
Coffey v. Harlan County, 204 U.S. 659, 663, 665 (1907). [Back to text]
1029
National Union v. Arnold, 348 U.S. 37 (1954) (the judgment debtor had refused to post a supersedeas bond or to comply with reasonable orders designed to safeguard the value of the judgment pending decision on appeal). [Back to text]
1030
Pizitz Co. v. Yeldell, 274 U.S. 112, 114 (1927). [Back to text]
1031
Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991). [Back to text]
1032
Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991) (finding sufficient constraints on jury discretion in jury instructions and in post-verdict review). See also Honda Motor Co. v. Oberg, 512 U.S. 415 (1994) (striking down a provision of the Oregon Constitution limiting judicial review of the amount of punitive damages awarded by a jury). [Back to text]
1033
Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257, 260 (1989). [Back to text]
1034
BMW of North America, Inc. v. Gore, 517 U.S. 559, 568 (1996) (holding that a $2 million judgment for failing to disclose to a purchaser that a “new” car had been repainted was grossly excessive in relation to the state’s interest, as only a few of the 983 similarly repainted cars had been sold in that same state); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) (holding that a $145 million judgment for refusing to settle an insurance claim was excessive as it included consideration of conduct occurring in other states). But see TXO Corp. v. Alliance Resources, 509 U.S. 443 (1993) (punitive damages of $10 million for slander of title does not violate the Due Process Clause even though the jury awarded actual damages of only $19,000). [Back to text]
1035
BMW v. Gore, 517 U.S. at 574–75 (1996). The Court has suggested that awards exceeding a single-digit ratio between punitive and compensatory damages would be unlikely to pass scrutiny under due process, and that the greater the compensatory damages, the less this ratio should be. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. at 424 (2003). [Back to text]
1036
Philip Morris USA v. Williams, 549 U.S. 346, 353 (2007) (punitive damages award overturned because trial court had allowed jury to consider the effect of defendant’s conduct on smokers who were not parties to the lawsuit). [Back to text]
1037
Wheeler v. Jackson, 137 U.S. 245, 258 (1890); Kentucky Union Co. v. Kentucky, 219 U.S. 140, 156 (1911). Cf. Logan v. Zimmerman Brush Co., 455 U.S. 422, 437 (1982) (discussing discretion of states in erecting reasonable procedural requirements for triggering or foreclosing the right to an adjudication). [Back to text]
1038
Blinn v. Nelson, 222 U.S. 1 (1911). [Back to text]
1039
Turner v. New York, 168 U.S. 90, 94 (1897). [Back to text]
1040
Soper v. Lawrence Brothers, 201 U.S. 359 (1906). Nor is a former owner who had not been in possession for five years after and fifteen years before said enactment thereby deprived of property without due process. [Back to text]
1041
Mattson v. Department of Labor, 293 U.S. 151, 154 (1934). [Back to text]
1042
Campbell v. Holt, 115 U.S. 620, 623, 628 (1885). [Back to text]
1043
Chase Securities Corp. v. Donaldson, 325 U.S. 304 (1945). [Back to text]
1044
Gange Lumber Co. v. Rowley, 326 U.S. 295 (1945). [Back to text]
1045
Campbell v. Holt, 115 U.S. 620, 623 (1885). See also Stewart v. Keyes, 295 U.S. 403, 417 (1935). [Back to text]
1046
Home Ins. Co. v. Dick, 281 U.S. 397, 398 (1930). [Back to text]
1047
Hawkins v. Bleakly, 243 U.S. 210, 214 (1917); James-Dickinson Co. v. Harry, 273 U.S. 119, 124 (1927). Congress’s power to provide rules of evidence and standards of proof in the federal courts stems from its power to create such courts. Vance v. Terrazas, 444 U.S. 252, 264–67 (1980); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 31 (1976). In the absence of congressional guidance, the Court has determined the evidentiary standard in certain statutory actions. Nishikawa v. Dulles, 356 U.S. 129 (1958); Woodby v. INS, 385 U.S. 276 (1966). [Back to text]
1048
Addington v. Texas, 441 U.S. 418, 423 (1979) (quoting In re Winship, 397 U.S. 358, 370 (1970) (Justice Harlan concurring)). [Back to text]
1049
Mathews v. Eldridge, 424 U.S. 319 (1976). [Back to text]
1050
Addington v. Texas, 441 U.S. 418 (1979). [Back to text]
1051
Santosky v. Kramer, 455 U.S. 745 (1982). Four Justices dissented, arguing that considered as a whole the statutory scheme comported with due process. Id. at 770 (Justices Rehnquist, White, O’Connor, and Chief Justice Burger). Application of the traditional preponderance of the evidence standard is permissible in paternity actions. Rivera v. Minnich, 483 U.S. 574 (1987). [Back to text]
1052
Stanley v. Illinois, 405 U.S. 645 (1972) (presumption that unwed fathers are unfit parents). But see Michael H. v. Gerald D., 491 U.S. 110 (1989) (statutory presumption of legitimacy accorded to a child born to a married woman living with her husband defeats the right of the child’s biological father to establish paternity. [Back to text]
1053
Presumptions were voided in Bailey v. Alabama, 219 U.S. 219 (1911) (anyone breaching personal services contract guilty of fraud); Manley v. Georgia, 279 U.S. 1 (1929) (every bank insolvency deemed fraudulent); Western & Atlantic R.R. v. Henderson, 279 U.S. 639 (1929) (collision between train and auto at grade crossing constitutes negligence by railway company); Carella v. California, 491 U.S. 263 (1989) (conclusive presumption of theft and embezzlement upon proof of failure to return a rental vehicle). [Back to text]
1054
Presumptions sustained include Hawker v. New York, 170 U.S. 189 (1898) (person convicted of felony unfit to practice medicine); Hawes v. Georgia, 258 U.S. 1 (1922) (person occupying property presumed to have knowledge of still found on property); Bandini Co. v. Superior Court, 284 U.S. 8 (1931) (release of natural gas into the air from well presumed wasteful); Atlantic Coast Line R.R. v. Ford, 287 U.S. 502 (1933) (rebuttable presumption of railroad negligence for accident at grade crossing). See also Morrison v. California, 291 U.S. 82 (1934). [Back to text]
1055
The approach was not unprecedented, some older cases having voided tax legislation that presumed conclusively an ultimate fact. Schlesinger v. Wisconsin, 270 U.S. 230 (1926) (deeming any gift made by decedent within six years of death to be a part of estate denies estate’s right to prove gift was not made in contemplation of death); Heiner v. Donnan, 285 U.S. 312 (1932); Hoeper v. Tax Comm’n, 284 U.S. 206 (1931). [Back to text]
1056
405 U.S. 645 (1972). [Back to text]
1057
Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974). [Back to text]
1058
Vlandis v. Kline, 412 U.S. 441 (1973). [Back to text]
1059
Department of Agriculture v. Murry, 413 U.S. 508 (1973). [Back to text]
1060
Thus, on the some day Murry was decided, a similar food stamp qualification was struck down on equal protection grounds. Department of Agriculture v. Moreno, 413 U.S. 528 (1973). [Back to text]
1061
422 U.S. 749 (1975). [Back to text]
1062
Stanley and LaFleur were distinguished as involving fundamental rights of family and childbearing, 422 U.S. at 771, and Murry was distinguished as involving an irrational classification. Id. at 772. Vlandis, said Justice Rehnquist for the Court, meant no more than that when a state fixes residency as the qualification it may not deny to one meeting the test of residency the opportunity so to establish it. Id. at 771. But see id. at 802–03 (Justice Brennan dissenting). [Back to text]
1063
422 U.S. at 768–70, 775–77, 785 (using Dandridge v. Williams, 397 U.S. 471 (1970); Richardson v. Belcher, 404 U.S. 78 (1971); and similar cases). [Back to text]
1064
Weinberger v. Salfi, 422 U.S. 749, 772 (1975). [Back to text]
1065
Vlandis, which was approved but distinguished, is only marginally in this doctrinal area, involving as it does a right to travel feature, but it is like Salfi and Murry in its benefit context and order of presumption. The Court has avoided deciding whether to overrule, retain, or further limit Vlandis. Elkins v. Moreno, 435 U.S. 647, 658–62 (1978). [Back to text]
1066
In Turner v. Department of Employment Security, 423 U.S. 44 (1975), decided after Salfi, the Court voided under the doctrine a statute making pregnant women ineligible for unemployment compensation for a period extending from 12 weeks before the expected birth until six weeks after childbirth. But see Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1977) (provision granting benefits to miners “irrebuttably presumed” to be disabled is merely a way of giving benefits to all those with the condition triggering the presumption); Califano v. Boles, 443 U.S. 282, 284–85 (1979) (Congress must fix general categorization; case-by-case determination would be prohibitively costly). [Back to text]
1067
Walker v. Sauvinet, 92 U.S. 90 (1876); New York Central R.R. v. White, 243 U.S. 188, 208 (1917). [Back to text]
1068
Marvin v. Trout, 199 U.S. 212, 226 (1905). [Back to text]
1069
In re Delgado, 140 U.S. 586, 588 (1891). [Back to text]
1070
Wilson v. North Carolina, 169 U.S. 586 (1898); Foster v. Kansas, 112 U.S. 201, 206 (1884). [Back to text]
1071
Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685, 694 (1897). [Back to text]
1072
Montana Co. v. St. Louis M. & M. Co., 152 U.S. 160, 171 (1894). [Back to text]
1073
See Jordan v. Massachusetts, 225 U.S. 167, 176 (1912). [Back to text]
1074
See Maxwell v. Dow, 176 U.S. 581, 602 (1900). [Back to text]
1075
Lindsey v. Normet, 405 U.S. 56, 77 (1972) (citing cases). [Back to text]
1076
405 U.S. at 74–79 (conditioning appeal in eviction action upon tenant posting bond, with two sureties, in twice the amount of rent expected to accrue pending appeal, is invalid when no similar provision is applied to other cases). Cf. Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71 (1988) (assessment of 15% penalty on party who unsuccessfully appeals from money judgment meets rational basis test under equal protection challenge, since it applies to plaintiffs and defendants alike and does not single out one class of appellants). [Back to text]